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READINGS IN AMERICAN 

CONSTITUTIONAL 

HISTORY 

I776-1876 



EDITED BY 



ALLEN JOHNSON 

Professor of A merican History in Yale University 




BOSTON NEW YORK CHICAGO 
HOUGHTON MIFFLIN COMPANY 



;5 









PREFACE 



In preparing this collection of historical material for pub- 
lication, I have had in mind chiefly the needs of the average 
undergraduate. Believing that the so-called "case system" 
has a distinct discipHnary value and may be applied profit- 
ably, within certain limits, to the study of constitutional his- 
tory, I have tested for some years in my classes a variety of 
documents drawn from many sources. The matter contained 
within the covers of this volume may be viewed as the survival 
of the, fittest. So far as possible, a unity and coherence have 
been given to the selections by careful grouping and by brief 
introductory comments. 

The phrase "constitutional history" has been used rather 
broadly to mean not only the development of Federal and State 
Constitutions, but also the history of governmental processes. 
" Readings in the history of American pohty " would have 
been a not inappropriate title for the book. 

Formal documentary matter — such as legislative bills, 
acts, and general statutes — has been omitted. Selected 
statutes are now accessible in several collections, notably in 
the excellent series edited by Professor William MacDonald. 
In conclusion, I will say that wherever a choice has been pos- 
sible, I have selected material with an eye to hterary form as 
well as to historical content. 

A. J. 

Yale University 
June, 191 2 



CONTENTS 



Part One. Fotindations of American Polity 

Chapter I. Colonial Charters and Establishments 

1. The Charter of Connecticut i 

Connecticut Colonial Records, ii, 3-1 1 passim. 

2. Defence of Charter Governments 4 

Dummer, Defence of the New-England Charters (1721), 35-39. 

3. The Charter of Maryland 6 

Thomas Bacon, Laws of Maryland (1765), passim. 

Chapter II. The Polity of a Royal Province 

4. Report of Governor Tryon on New York 10 

O'Callaghan, Documentary History of the State of New York, i, 752- 
56. 

5. Report of Governor Gooch on Virginia 14 

"Queries from ye Lds of Trade to Sr Wm. Gooch Govr of Virginia 
& his Answers Abridged," in Virginia Magazine of History, iii, 
I 14-17. 

Chapter III. The Powers of a Royal Governor 

6. Commission of Francis Bernard as Governor of New Jersey . 18 

Ricord and Nelson, Documents relating to the Colonial History of the 
State of New Jersey, ix, 23-34 passim. 

7. Instructions to Governor Bernard of New Jersey . . .22 

Ricord and Nelson, Documents relating to the Colonial History of the 
State of New Jersey, ix, 40-77 passim. 

Chapter IV. Royal Governor and Representative Assembly 

8. The Points at Issue between the Colonies and the Crown . 26 

Pownall, Administration of the Colonies (1765), 39-47 passim. 

9. "Every Proprietary Governor has Two Masters" ... 30 

Franklin, An Historical Review of the Constitution and Government 

of Pennsylvania, 72-73. 

10. The Power of the Purse 31 

Pownall, Administration of the Colonies (1765), 50-53. 

Chapter V. The Union of the American Colonies 

11. Credentials of the Massachusetts Delegates to the First 

Continental Congress ^4 

Journals of the Continental Congress (Ford ed.), i, 15-16. 



VI CONTENTS 

12. The Association . . • 35 

Journals of the Continental Congress (Ford ed.), i, 75-80. 

13. Resolutions of the Second Continental Congress ... 40 

Journals of the Continental Congress (Ford ed.), 11, 79, 83-84, 89, 91. 

Chapter VI. Political Doctrines of the Revolutionary Era 

14. John Locke on the Dissolution of Governments ... 43 

Locke, Two Treatises of Government (Morley's Universal Library), 
222, 225. 

15. The Revolution in New Hampshire 44 

Thorpe, Federal and State Constitutions, iv, 2451-53. 

16. The Declaration of Independence 46 

Revised Statutes of the United States (1878), 3-5. 

17. Massachusetts Declaration of Rights 48 

.. Thorpe, Federal and State Constitutions, iii, 1888-93. 



Part Two. The Formation of State and Federal 
Constitutions 

Chapter VII. Principles of Representative Government 

18. Distinction between Democracies and Republics • • • 55 

Federalist (Ford ed.), No. 10 passim. 

* 

19. The Nature of Representation 56 

Federalist (Ford ed.), Nos. 35 and 36 passim. 

20. Doctrine of the Separation of Powers 59 

Federalist (Ford ed.), No. 47 passim. 

21. Checks and Balances 61 

Federalist (Ford ed.). No. 51. 

Chapter VIII. State Constitutions of the Revolutionary Era 

22. Transition from Colony to Commonwealth in Connecticut . 63 

Poore, Charters and Constitutions, i, 257. 

23. Constitution of New Jersey, 1776 . .64 

Thorpe, Federal and State Constitutions, v, 2594-98. 

24. Constitution of Virginia, 1776 68 

Thorpe, Federal and State Constitutions, vii, 3815-19. 

Chapter IX. The First Federal Constitution 

25. The Articles of Confederation 74 

Revised Statutes of the United States (1878), 7-1 1. 

Chapter X. Defects of the Confederation 

26. Depeitoence of the Confederation on the State Governments . 84 

Federalist (Ford ed.), No. 15, 90-95. 

27. Specific Defects of the Confederation 88 

Federalist (Ford ed.). No. 21, 124-129. 



CONTENTS vii 

Chapter XI. Origin or the Federal Convention 

28. Antecedents of the Annapolis Convention .... 93 , i 

James Madison, Preface to Debates in the Convention of 17S7, in - ^' 

Farrand's Records of the Federal Convention, iix, 543-45. 

29. Report of the Annapolis Convention 96 

Elliot, Debates in the Several State Conventions on the Adoption of the 
Federal Constitution (1866), i, 117-18. 

30. Call for the Constitutional Convention 98 

Elliot, Debates, i, 120. 

31. Difficulties encountered by the Convention .... 99 

Federalist (Ford ed.), No. 37 passim. 

Chapter XII. The Constitutional Convention of 1787 

32. Opening Session of the Convention 102 

Journal, in Farrand's Recordsof the Federal Convention, i, 1-2. 

33. The Randolph Resolutions 104 

Farrand, Records of the Federal Convention, 1, 20-22 

34. The Paterson Resolutions 107 

Farrand, Records of the Federal Convention, i, 242-45. 

35. The Great Compromise no 

Farrand, Records of the Federal Convention, i, 522-23. 

Chapter XIII. The Constitution of the United States 

36. The Constitution as adopted 112 

Revised Statutes of the United States (1878), 17-27. 

Chapter XIV. The Ratification of the Constitution 

37. Transmission of the New Constitution to Congress . . .126 

Elliot, Debates, v, 541. 

38. Ratification of the Constitution by the State of Georgia . 127 

Elliot, Debates, i, 323-24. 

39. The Constitution — National or Federal? 128 

Federalist (Ford ed.), No. 38, 245-52 passim. 

v/Chapter XV. The First Amendments to the Constitution 

40. A Proposal to amend the New Constitution 135 

Annals of Congress, i Cong., i Sess., 449-57 passim. 

41. Resolution of Congress for the Amendment of the Constitu- 

tion 138 

Elliot, Debates, i, 338. 

42. The First Ten Amendments 138 

Revised Statutes of the United States (1878), 28-30. 

43. Chisholm v. Georgia 140 

2 Dallas, 419. 

44. The Eleventh Amendment 142 

Revised Statutes of the United States (1878), 30. 



vlil CONTENTS 

Chapter XVI. The Government of Federal Territories 

45. The Ordinance of TcySy for the Northwest Territory . . 143 

Revised Statutes of the United States (1878), 13-16. 

Part Three. The Establishment of the Federal 
Government 

Chapter XVII. President and Congress 

46. The Inauguration of President Washington 151 

Maclay, Journal of William Maclay, 7-9. 

47. The President's Speech and the Address of the House . .154 

Annals of Congress, 2 Cong., i Sess., 143-47 passim. 

48. Origin of the First Veto Message 157' 

Writings of Thomas Jefferson (Ford ed.), i, 192. 

49. The Veto Message in the House 157 

Annals of Congress, 2 Cong., i Sess., 539-41 passim. 

50. President Jefferson's Innovation 159 

Richardson, Messages and Papers of the Presidents, i, 325. 

Chapter XVIII. The Senate as an Executive Council 

51. Considerations on the Time, Place, and Manner of Consulta- 

tions 160 

Writings of George Washington (Ford ed.), xi, 418-19. 

52. How the President shall be received in the Senate . .161 

Writings of George Washington (Ford ed.), xi, 419 note. 

53. President and Senate in Executive Session 162 

Maclay, Journal of William Maclay, 123-33 passim. 

Chapter XIX. The Appointing and Removing Power oe the 

President 

54. Debate on the Establishment of a Secretaryship of Foreign 

Affairs 168 

Annals of Congress, i Cong., i Sess., 473-521 passim. 

Chapter XX. Congress and the Treasury Department 

55. Debate on the Establishment of a Secretaryship of Treas- 

ury 178 

Annals of Congress, i Cong., i Sess., 616-31 passim. 

56. Power of the House over Heads of Departments . . . 184 

Writings of Jeferson (Ford ed.), i, 189-90. 

57. Reports of the Secretary of Treasury 186 

Henry Adams, Writings of Albert Gallatin, 1, 66-67. 

Chapter XXI. The Whiskey Insurrection 

58. Proclamation of August 7, 1794 188 

Richardson, Messages and Papers of the Presidents, 1, 158-60. 



CONTENTS ix 

59. Proclamation of September 25, 1794 . . . ' . . . . 191 

Richardson, op. cit., i, 161-62. 

60. Instructions to Governor Lee 193 

Brackenridge, History of the Western Insurrection, 283-85. 

Chapter XXII. The Part of the House in Treaty-Making 

61. Debate in the House of Representatives on the Jay Treaty 197 

Annals of Congress, 4 Cong., i Sess., 426-772 passim. 

Chapter XXIII. Organization and Procedure of the House of 

Representatives 

62. The Opening of a Session 206 

Annals of Congress, 7 Cong., i Sess. (1801), 309-11. 

63. Rules and Orders of the House of Representatives . . 208 

Annals of Congress, 7 Cong., i Sess. (1801), 409-15. 

64. Beginnings of the Committee System 213 

Works of Hamilton (Hamilton ed.), vi, 201-02. 

y Chapter XXIV. The Origin of the Twelfth Amendment 

65. The Election of 1801 214 

Works of Hamilton (Hamilton ed.), vi, 506-07; 522-24. 

66. Debate in the Senate on the Proposed Amendment . . .216 

Annals of Congress, 8 Cong., i Sess. (1803), 141-84 passim. 

67. The Twelfth Amendment 223 

Revised Statutes of the United States (1878), 30. 



Part Four. The Development of National Sovereignty 

Chapter XXV. The Federal Compact and the Doctrine of 
Strict Construction 

68. Jefferson on the Constitutionality of a National Bank . 225 

Writings of Jefferson (Ford ed.), v, 285-87. 

69. Kentucky Resolutions of 1798 228 

Shaler, Kentucky, in the American Commonwealths Series, 409-16. 

70. Kentucky Resolutions of 1799 235 

Elliot, Debates, iv, 570-72. 

Chapter XXVI. The Power to acquire Territory and to 
GOVERN Acquired Territory 

71. Jefferson on the Purchase of Louisiana 237 

Writings of JeJ'erson (Washington ed.), iv, 500-01. 

72. Senator Taylor on the Louisiana Treaty 237 

Annals of Congress, 8 Cong., i Sess., 49-52. 

73. The American Insurance Company v. Canter 241 

I Peters, 511. 



X CONTENTS 

74. Power of Congress over Acquired Territory . . . .243 

Annals of Congress, 8 Cong., i Sess., 49-52. 

75. Sere et al. v. Pitot et al. . . . ^ 244 

6 Cranch, 332. 

76. New Orleans v. Winter et al 245 

I Wheaton, 91. 

V Chapter XXVII. The Power of the Federal Judiciary to de- 
clare Acts of Congress Void 

77. Marbury v. Madison 246 

I Cranch, 137. 

78. Jefferson on the Usurpation of the Federal Judiciary . .252 

Writings of Jeferson (Washington ed.), vii, 134-35. 

Chapter XXVIII. Pennsylvania and the Federal Judiciary 

79. United States v. Judge Peters 254 

5 Cranch, 135. 

80. Resolutions of the Legislature of Pennsylvania . . . 260 

Annals of Congress, 11 Cong., 2 Sess., App., 2253-69 passim. 

Chapter XXIX. Nullification in New England 

81. Secretary of War to the Governor of Connecticut . . 263 

American Register (1809), 177-78. 

82. The Governor of Connecticut to the Secretary of War . 264 

American Register (1809), 178-79. 

83. Resolutions of the General Assembly of Connecticut . .266 

American Register (1809), 180-81. 

84. The Governor of Massachusetts to the Secretary of War . 268 

Senate Documents, 13 Cong., 3 Sess., Report of the Committee on 
Military Affairs, 34-48. 

85. Opinion of the Judges of the Supreme Court of Massachusetts 269 

Senate Documents, 13 Cong., 3 Sess., Report of the Committee on 
Military Affairs, 38-42. 

86. Martin v. Mott 271 

12 Wheaton, 19. 

/ 
^ Chapter XXX. The Doctrine of Liberal Construction of the 

Constitution 

87. M'CuLLOCH V. Maryland et al .273 

4 Wheaton, 316. 

Chapter XXXI. Jurisdiction of the Supreme Court over State 

Courts 

88. Martin, Heir at Law and Devisee of Fairfax, v. Hunter's 

Lessee 282 

I Wheaton, 304. 



CONTENTS . xi 

89. Cohens v. The State of Virginia 287 

6 Wheaton, 264. 

Chapter XXXII. Constructive Judicial Interpretation of the 

Constitution 

90. Gibbons v. Ogden 291 

9 Wheaton, i. 



Part Five. National Sovereignty v. State Rights 

Chapter XXXIII. The Admission of New States 

91. Representative Taylor on the Admission of Missouri . . 299 

Annals of Congress, 15 Cong., 2 Sess., 1171-74 passim. 

92. Representative McLane on the Admission of Missouri . . 302 

Annals of Congress, 16 Cong., i Sess., 1141-60 passim. ^ 

93. Senator Pinkney on the Admission of Missouri .... 305 

Annals of Congress, 16 Cong., i Sess., 397-99 passim. 

\ Chapter XXXIV. Nullification in Georgia 

94. Georgia and the Lands of the Creeks and Cherokees . . 308 

Acts of Georgia (1827), 248. 

95. Legislature of Georgia on the Case of George Tassels . . 309 

Acts of Georgia (1830), 282. 

96. The Cherokee Nation u. The State of Georgia . . . .310 

5 Peters, i. 

97. Worcester v. The State of Georgia 312 

6 Peters, 515. 

Chapter XXXV. The Doctrine of Nullification 

98. The South Carolina Exposition 317 

Works of John C. Calhoun (Cralle ed.), vi, 36-51 passim, 

99. Report for a Committee of the South Carolina Legislature 322 

Works of Calhoun (Cralle ed.), vi, 111-12. 

100. The Fort Hill Letter on State Interposition . . . .323 
Works of Calhoun (Cralle ed.), vi, 147-69 passim. 

Chapter XXXVI. Nullification in South Carolina 

loi. South Carolina Ordinance of Nullification . . . . .326 
Senate Documents, No. 30, 22 Cong., 2 Sess., 36-38. " 

102. President Jackson's Proclamation to the People of South 

Carolina 329 

Richardson, Messages and Papers of the Presidents, 11, 641-52 passim. 

Chapter XXXVII. The Nature of the Union 

103. The Federal Compact a Binding Obligation 335 

Richardson, Messages and Papers of the Presidents, 11, 648-50 passim. 



xii CONTENTS 

104. Webster's Reply to Hayne of South Carolina . . * . .337 

Works of Daniel Webster (1851), iii, 270-342 passim. 

.■Chapter XXXVIII. Federal Control of State Governments 

105. President Tyler to the Governor of Rhode Island . . 344 

Broadside in Yale University Library. 

106. Memorial of the Democratic Members of the Legislature of 

Rhode Island 345 

Hoitse Reports, No. 546. 28 Cong., i Sess. 

107. Luther v. Borden 348 

7 Howard, i. 



Part Six. The New Democracy 

Chapter XXXIX. The Basis of the New Democracy 

108. Social Conditions and their Political Consequences . . 353 

De Tocqueville, Democracy in America (12th ed.), i, 63-67 passim. 

109. Sovereignty of the People zSS 

De Tocqueville, op. cit., i, 69-72 passim. 

no. Chancellor Kent on Universal Suffrage 356 

New York Convention of 182 1, Reports of the Proceedings and De- 
bates, 219-22 passim. 

111. Property not the True Basis of Representation . . .360 

New York Convention of 182 1, Reports of the Proceedings and De- 
bates, 241-44 passim. 

Chapter XL. Constitutional Changes in the States 

112. Veto Power of the Governor 363 

New York Convention of 182 1, Reports of the Proceedings and De- 
bates, 52-53. 

113. The Governor as "the Man of the People" 365 

New York Convention of 1821, Reports of the Proceedings and De- 
bates, 60-61. 

114. Political Power of the Judiciary 366 

De Tocqueville, Democracy in America (12th ed.), i, 125-30. 

115. Popular Election of the Judiciary 367 

Debates and Proceedings of the Maryland Reform Convention (1851), 
II, 461-64 passim. 

Chapter XLI. President and Congress: the Veto Power 

116. President Jackson's Bank Veto •37° 

Richardson, Messages and Papers of the Presidents, 11, 576-91 passim. 

117. Henry Clay on the Veto Power . -375 

Mallory, Life and Speeches of Henry Clay, 11, 519-28 passim. 

118. President Polk on the Exercise of the Veto Power . .378 

Richardson, Messages and Papers of the Presidents, iv, 662-65 passim. 



CONTENTS xiii 

Chapter XLII. The President as the Direct Representative 
OF the People 

119. President Jackson's Paper read to the Cabinet .... 380 

Niles's Register, xlv, 73-77 passim. 

120. President Jackson's "Protest" 384 

Richardson, Messages and Papers of the Presidents, iii, 69-93. 

121. Senator Webster on the "Protest" 389 

Works of Webster (1851), iv, 136-45 passim. 

Chapter XLIII. Presidential Initiative in determining 
Foreign Policy 

122. President Polk's War Message 393 

Richardson, Messages and Papers of the Presidents, iv, 437-43 passim. 

123. A Whig View of the Origin of the War 397 

Cleveland, Alexander H. Stephens, 304-16 passim. 

124. President Polk to Congress 399 

Richardson, Messages and Papers of the Presidents, iv, 536-38. 

125. President Polk to the House of Representatives . . .402 

Richardson, Messages and Papers of the Presidents, iv, 594-96 passim. 

126. President Polk to Congress 404 

Richardson, Messages and Papers of the Presidents, iv, 638. 



Part Seven. Slavery and the Constitution 

w Chapter XLIV. Slavery in the Territories 

127. The Wilmot Proviso 405 

Congressional Globe, August 8, 1846. 

128. The Rhett-Calhoun Doctrine ~~^^ 40 j 

Congressional Globe, 29 Cong., 2 Sess., App., 244-46 passim. 

129. The Law of the Acquired Territories - . . . . . . 408 

Congressional Globe, 30 Cong., 1 Sess., App., 1104-06 passim. 

130. "Squatter Sovereignty" .... 411 

Niles's Register, Lxxiii, 293-94. 

131. The Territorial Acts of 1850 for Utah and New Mexico . 414 

Report of the Committee on Territories, Senate Reports, No. 15, 
• ^2> Cong., I Sess., January 4, 1854. 

Chapter XLV. The Rendition oe Fugitive Slaves 

132. Prigg v. Pennsylvania 416 

16 Peters, 539. 

133. Report of the Legislature of Virginia, 1849 421 

Acts of Virginia, 1849-50, 240-54 passim. 

134. Opinion of the Attorney-General on the Fugitive Slave Law 

OF 1850 423 

Executive Documents, 31 Cong., 2 Sess., 2099-2102 passim. 



'^.^f-^ 




xlv CONTENTS 

Chapter XL VI. The Doctrine of Popular Sovereignty 

135. Report of the Senate Committee on Territories, 1854 . . 426 

Senate Reports, No. 15, 2>2> Cong., i Sess., January 4, 1854. 

136. Senator Everett on the Principle of the Legislation of 1850 430 

Congressional Globe, ^^ Cong., i Sess., App., 160-62 passim. 

137. Senator Douglas on the Principle of Popular Sovereignty . 433 

Congressional Globe, ;is Cong., i Sess., App., 326-37 passim. 

Chapter XLVII. Dred Scott v. Sandford 

138. Dred Scott, Plaintiff in Error, v. John F. A. Sandford . . 436 

19 Howard, 393. 

Chapter XLVIII. Popular Sovereignty and the Dred Scott 

Decision 

139. The Freeport Doctrine 446 

Lincoln-Douglas Debates of i8j8 (Sparks ed.), 161-62. 

140. Lincoln's Reply at Jonesboro 447 

Lincoln-Douglas Debates of 1858 (Sparks ed.), 242-45. 

141. Douglas's Rejoinder at Jonesboro 450 

Lincoln-Douglas Debates of 1858 (Sparks ed.), 258. 

142. Speech of Lincoln at Columbus, Ohio 451 

Political Debates between Lincoln and Douglas (Columbus, i860), 
250-51 passim. 

Chapter XLIX. Secession and Coercion 

143. Opinion of the Attorney-General upon the Powers of the 

President 454 

McPherson, Political History of the United States during the Great 
Rebellion, 51-52. 

144. President Buchanan's Message of December 3, i860 . . 455 

kichardson. Messages and Papers of the Presidents, v, 630-36 passim. 

145. South Carolina Declaration of Causes 459 

Moore, Rebelliu:i Record, i, 3-4, passim. 

146. Dissolution of the Partnership 462 

Davis, Rise and Fall oj the Confederate Government, i, 209-14 passim. 



Part Eight. The Constitution in the Civil War 

Chapter L. The Nature of the War 

147. President Lincoln's Inaugural Address 464 

Richardson, Messages and Papers of the Presidents, vi, 7-8. 

148. The Call to Arms 466 

Richardson, Messages and Papers of the Presidents, vi, 13. 

149. Proclamation of Blockade 467 

Richardson, Messages and Papers of the Presidents, vi, 14. 



CONTENTS XV 

150. President Lincoln's Message of July 4, 1861 .... 468 

Richardson, Messages and Papers of the Presidents, vi, 24-28 passim. 

151. Proclamation of War 471 

Richardson, Messages and Papers of the Presidents, vi, 37-38. 

152. The Prize Cases 472 

2 Black, 635. 

^ Chapter LI. Presidential Dictatorship 

153. Ex parte John Merryman 474 

McPherson, Political History of the United States during the Great 
Rebellion, 155-56. 

154. Opinion of Attorney-General Bates 478 

McPherson, Political History of the United States during the Great 
Rebellion, 159-61 passim. 

Y Chapter LII. The War Power and Civil Rights 

155. Senator Collamer on Confiscation of Rebel Property . . 482 

Congressional Globe, 37 Cong., 2 Sess., 1809-10 passim. 

156. Senator Sumner on the Rights of War 486 

Congressional Globe, 37 Cong., 2 Sess., 2963-64 passim. 

157. Representative Thomas on Confiscation 488 

Congressional Globe, 37 Cong., 2 Sess., App., 219-20 passim. 

V Chapter LIII. Martial Law and the Constitution 

158. Power of Congress to create a Dictator 491 

Congressional Globe, 37 Cong., 2 Sess., 440 passim. 

159. "The Executive Power" 492 

Benjamin R. Curtis, The Executive Power (1862), passim. 

160. Ex parte Milligan 495 

4 Wallace, 2. 

Chapter LIV. Emancipation 

161. Contraband of War 500 

McPherson, Political History of the United States during the Great 

Rebellion, 245. 

162. Forfeiture of Slaves . 502 

Richardson, Messages and Papers of the Presidents, vi, 85-86. 

163. Power of the Presedent to emancipate Slaves .... 503 

Whiting, War Powers of the President (1862), 66-68 passim. 

164. Emancipation Proclamation 504 

United States Statutes at Large, xii, 1268-69. 

165. Resolution of Congress freeing Soldiers' Families . . . 506 

United States Statutes at Large, xiii, 571. 

166. The Thirteenth Amendment 506 

Revised Statutes of the United States (1878), 30. 

167. JuT)iciAL Interpretation of the Thirteenth Amendment . . 506 

Slaughter-House Cases, 16 Wallace, 36. 



xvi CONTENTS 

Part Nine. The Reconstruction of the Union 

Chapter LV. Presidential Restoration 

i68. President Lincoln's Proclamation of Amnesty .... 509 
Richardson, Messages and Papers of the Presidents, vi, 213-15. 

169. Last Speech of President Lincoln 512 

Complete Works of Lincoln (Nicolay and Hay), 11, 672. 

170. Appointment of a Provisional Governor for North Carolina 512 

Richardson, Messages and Papers of the Presidents, vi, 312-14. 

171. First Annual Message of President Johnson . . . .515 

Richardson, Messages and Papers of the Presidents, vi, 353-58 passim. 

Chapter LVI. Origin of the Fourteenth Amendment 

172. Report of the Joint Committee on Reconstruction . . .518 

Report of the Joint Committee on Reconstruction, 39 Cong., i Sess. 
(1866), pp. xiii-xxi passim. 

173. Representative Bingham on the Joint Resolution . . .520 

Congressional Globe, 39 Cong., i Sess., 2542-43 passim. 

174. Senator Howard on the Joint Resolution 523 

Congressional Globe, 39 Cong., i Sess., 2765-66 passim. 

175. The Fourteenth Amendment 526 

Revised Statutes of the United States (1878), 31. 

Chapter LVII. Theories as to the Status of the States 

176. The State-Suicide Theory of Charles Sumner .... 528 

Atlantic Monthly, xii, 518-26 passim. 

177. The Conquered-Province Theory of Thaddeus Stevens . . 530 

Congressional Globe, 39 Cong., i Sess., 72. 

178. The Doctrine of Forfeited Rights 532 

Report of the Joint Committee on Reconstruction, 39 Cong., i Sess. 
(1866), pp. viii-xii passim. 

179. The Supreme Court on the Status of the States . . . 535 

Texas v. White, 7 Wallace, 700. 

Chapter LVIII. Congressional Reconstruction 

180. Veto Message of March 2, 1867 538 

Richardson, Messages and Papers of the Presidents, vi, 498-507 
passim. 

181. Veto Message of March 23, 1867 541 

Richardson, Messages and Papers of the Presidents, vi, 531-34 passim. 

182. Veto Message of July 19, 1867 543 

Richardson, Messages and Papers of the Presidents, vi, 537-44 passim. 

Chapter LIX. The Supreme Court and Reconstruction 

183. State of Mississippi v. Andrew Johnson, President . . . 547 

4 Wallace, 475. 



CONTENTS xvll 

184. State of Texas v. White 550 

7 Wallace, 700. 

Chapter LX. The Impeachment oe PREsmsNT Johnson 

185. Opinion of Senator Wilson 553 

Trial of Andrew Johnson, iii, 215-16. 

186. Opinion of Senator Fessenden 555 

Trial of Andrew Johnson, iii, 29-30. 

187. Opinion of Senator Grimes 557 

Trial of Andrew Johnson, iii, 331-38 passim. 

K Chapter LXI. Judicial Interpretation oe the Fourteenth 

Amendment 

188. The Slaughter-House Cases 562 

16 Wallace, 36. 

V Chapter LXII. The Fifteenth Amendment 

i8q. Representative Shellabarger on the Proposed Fifteenth 

Amendment 572 

Congressional Globe, 40 Cong., 3 Sess., App., 98. 

190. Senator Doolittle on the Proposed Fifteenth Amendment . 574 

Congressional Globe, 40 Cong., 3 Sess., App., 151. 

191. The Fifteenth Amendment 576 

Revised Statutes of the United States (1878), 32. 

192. Judicial Interpretation of the Fifteenth Amendment . .576 

United States v. Reese, 92 U.S., 214. 
United States v. Cruikshank, 92 U.S. 542. 

Index 579 



PART ONE. FOUNDATIONS OF AMERICAN 

POLITY 

CHAPTER I 

COLONIAL CHARTERS AND ESTABLISHMENTS 

At the outbreak of the Revolution there were two types of colonial 
establishment in British North America: the province and the corporate 
colony. Of the latter only Connecticut and Rhode Island survived the 
repeated attacks of the royal government. Both had received charters 
from King Charles Second, creating them corporations on the place. 
A happy combination of circumstances had secured legal recognition 
of the governmental organizations already existing. Both colonies, there- 
fore, could continue their development as self-governing communities, 
with practically no interference from the Crown. Extracts from the Con- 
necticut charter indicate the nature of the government. There were two 
kinds of provinces: the proprietary and the royal. The charter given to 
Lord Baltimore is an example of the proprietary grant. A royal province 
may be defined as one in which the King is his own proprietor, retaining 
both governmental and territorial powers. Maryland and Pennsylvania 
with Delaware were the only proprietary provinces left after the middle 
of the eighteenth century. New Hampshire, New York, New Jersey, the 
Carolinas, and Georgia had reverted to the Crown and become royal 
provinces. 

I. The Charter of Connecticut — 1662} 

Charles the Second, [&c.] Whereas, . . . We have byn 
informed by the humble Petition of our Trusty and welbe- 
loved John Winthrop, [and others] . . . that the same Colony 
or the greatest parte thereof was purchased and obteyned for 
greate and valuable considerations. And some other parte 
thereof gained by Conquest and with much difficulty, and att 
the onely endeavours, expence and Charge of them and their 
Associates, and those under whome they Clayme, Subdued 
^ Connecticut Colonial Records, 11, 3-1 1. 



2 FOUNDATIONS OF AIVlERICAN POLITY 

and improved, and thereby become a considerable enlargement 
and addition of our Dominions and interest there, — NOW 
KNOW YEA, that . . . WEE HAVE thought fitt . . . to 
Create and Make them a Body Pollitique and Corporate, with 
the powers and Priviledges herein after mentioned; And 
accordingly WEE ... by theis presents . . . DOE Ordeine, 
Constitute and Declare That they, the said John Winthrop 
. . . [and others] . . ., and all such others as now are or 
hereafter shall bee Admitted and made free of the Company 
and Society of our Collony of Conecticut in America, shall . . . 
bee one Body Corporate and PolHtique in fact and name, by the 
Name of Governour and Company of the EngHsh Collony of 
Conecticut in New England in America; . . . AND further, 
wee . . . DOE Declare and appoint, that for the better 
ordering and manageing of the affaires and businesse of the 
said Company and their Sucessors, there shall be one Govern- 
our, one Deputy Governour and Twelve Assistants, to bee 
from tyme to tyme Constituted, Elected and Chosen out of 
the Freemen of the said Company for the tyme being, in such 
manner and forme as hereafter in these presents is expressed; 
which said Officers shall apply themselves to take care for the 
best disposeing and Ordering of the Generall busines and 
affaires of and concerning the lands and hereditaments herein 
after mentioned to bee graunted, and the Plantation thereof 
and the Government of the People thereof. And . . . WEE 
DOE . . . Constitute and appoint the aforesaid John Win- 
throp to bee the first and present Governour of the said Com- 
pany; And the said John Mason to bee the Deputy Governour; 
And the said Samuell Willis, [and others] ... to bee the 
Twelve present Assistants of the said Company; to contynue 
in the said severall Offices respectively untill the second Thurs- 
day which shall bee in the Moneth of October now next come- 
ing. AND further, wee . . . DOE Ordaine and Graunt that 
the Governour of the said Company for the tyme being, or, in 
his absence by occasion of sicknes, or otherwise by his leave or 
permission, the Deputy Governour for the tyme being, shall 
and may from tyme to tyme upon all occasions give Order for 



CHARTERS AND ESTABLISHMENTS 3> 

the assembling of the said Company and calling them together 
to Consult and advise of the businesse and Affaires of the said 
Company, And that for ever hereafter, Twice in every yeare, 
(That is to say.) on every second Thursday in October and on 
every second Thursday in May, or oftener, in Case it shall be 
requisite, The Assistants and freemen of the said Company, 
or such of them (not exceeding twoe Persons from each place, 
Towne or Citty) whoe shall bee from tyme to tyme thereunto 
Elected or Deputed by the major parte of the freemen of the 
respective Townes, Cittyes and Places for which they shall bee 
soe elected or Deputed, shall have a generall meeting or Assem- 
bly, then and their to Consult and advise in and about the 
Affaires and businesse of the said Company; And that the 
Governour, or . . . Deputy Governour . . ., and such of the 
Assistants and freemen of the said Company as shall be soe 
Elected or Deputed and bee present att such meeting or 
Assembly, or the greatest number of them, whereof the Govern- 
our or Deputy Governour and Six of his Assistants, at least, 
to bee Seaven, shall be called the Generall Assembly, and shall 
have full power and authority to alter and change their dayes 
and tymes of meeting or Generall Assemblies for Electing the 
Governour, Deputy Governour and Assistants or other Offi- 
cers, or any other Courts, Assemblies or meetings, and to 
Choose, Nominate and appoint such and soe many other Per- 
sons as they shall thinke fitt and shall bee willing to accept the 
same, to bee free of the said Company and Body Politique, and 
them into the same to Admitt and to Elect, and Constitute 
such Officers as they shall thinke fitt and requisite for the 
Ordering, mannageing and disposeing of the affaires of 
said Governour and Company and their Successors. AND 
WEE DOE hereby . . . Establish and Ordeine, that once in 
the yeare . . ., namely, the said Second Thursday in May, the 
Governour, Deputy Governour and Assistants of the said 
Company and other Officers of the said Company, or such of 
them as the said Generall Assembly shall thinke fitt, shall bee, 
in the said Generall Court and Assembly to bee held from that 
day or tyme, newly Chosen for the yeare ensuing, by such 



4 FOUNDATIONS OF AMERICAN POLITY 

greater part of the said Company for the tyme being then and 
there present. . . . 

2. Defense of Charter Governments} 

The other Charge in the Bill is, That they have exercised 
arbitrary Power. If this be aimed at the Proprietary Govern- 
ments, which however I don't accuse, I have nothing to say, 
but am sure that the Charter Governments stand clear of it. 
The Thing speaks loudly for itself. For in the Governments, 
where there are Charters and those Charters entire, all Officers 
Civil and Military are elected by the People, and that annu- 
ally; than which Constitution nothing under Heaven can be 
a stronger Barrier against arbitrary Rule. For should it be 
allowed, that the People, corrupted or deceived, might instead 
of wise Magistrates chuse Tyrants and Oppressors to Lord 
over them one Year; yet it can't be imagined, that after they 
have felt the Smart of it, they will do so the next. Nor can 
there be a greater Obligation on the Rulers themselves to 
administer Justice, than that their Election depends on it the 
next Year. Hence the frequent Choice of Magistrates has bin 
ever a main Pillar, upon which all who have aim'd at Freedom 
in their Schemes of Government, have depended. 

AS the Reason is incontestable, so the Fact is apparent, that 
these Governments, far from retrenching the Liberty of the 
Subject, have improved it in some important Articles, which 
the Circumstances of Things in Great Britain perhaps don't 
require, or won't easily admit. 

To instance in a few: There has bin from the beginning an 
Office erected by Law in every Country, where all Convey- 
ances of Land are enter'd at large, after the Grantors have 
first acknowledg'd them before a Justice of Peace; by which 
means much Fraud is prevented, no Person being able to sell 
his Estate twice, or take up more Money upon it than it's 
worth. Provision has likewise bin made for the Security of the 
Life and Property of the Subject in the Matter of Juries, who 
are not returned by the Sherrifl of the County, but are chosen 

^ Jer. Dummer, Defence of the New-England Charters (1721), 35-39. 



CHARTERS AND ESTABLISHMENTS 5 

by the Inhabitants of the Town a convenient Time before the 
sitting of the Courts. And this Election is under the most exact 
Regulation, in Order to prevent Corruption, so far as Humane 
Prudence can do it. It must be noted, that Sherriffs in the 
Plantations are comparatively but little Officers, and therefore 
not to be trusted as here, where they ar» Men of ample For- 
tunes. And yet even here such flagrant Corruptions have bin 
found in returning Juries by Sherriffs, that the House of Com- 
mons thought it necessary in their last Session to amend the 
Law in this Point, and pass'd a Bill for choosing them by 
Ballot. 

REDRESS in their Courts of Law is easy, quick, and chea-p. 
All Processes are in English, and no special Pleadings or De- 
murrers are admitted, but the general Issue is always given, 
and special Matters brought in Evidence; which saves Time 
and Expence; and in this Case a Man is not liable to lose his 
Estate for a Defect in Form, nor is the Merit of the Cause 
made to depend on the Niceties of Clerkship. By a Law of 
the Country no Writ may be abated for a circumstantial Error, 
such as a slight Mis-nomer or any Informality. And by an- 
other Law, it is enacted, that every Attorney taking out a Writ 
from the Clerk's Office, shall indorse his Sirname upon it, and 
be Hable to pay to the adverse Party his Costs and Charges 
in Case of Non-Prosecution or Discontinuance, or that the 
Plaintiff be Nonsuit, or Judgment pass against him. And it is 
provided in the same Act, That if the Plaintiff shall suffer a 
Nonsuit by the Attorney's mis-laying the Action, he shall be 
obliged to draw a new Writ without a Fee, in case the Party 
shall see fit to revive the Suit. I can't but think that every 
Body except Gentlemen of the long Robe and the Attornies, 
will think this a wholesome Law, and well calculated for the 
Benefit of the Subject. For the quicker Dispatch of Causes, 
Declarations are made Parts of the Writ, in which the Case is 
fully and particularly set forth. If it be a matter of Account, 
the Account is annexed to the Writ, and Copies of both left 
with the Defendant; which being done Fourteen Days before 
the Sitting of the Court, he is oblig'd to plead directly, and the 



6 FOUNDATIONS OF AMERICAN POLITY 

Issue is then tryed. Whereas by the Practice of the Court of 
King's Bench, Three or Four Months Time is often lost after 
the Writ is served, before the Cause can be brought to Issue. 
'Nor are the People of New England oppressed with the infi- 
nite Delays and Expence that attend the Proceedings in Chan- 
cery, where both Parties are often ruined by the Charge and 
Length of the Suit. But as in all other Countries, England only 
excepted. Jus & Aequum are held the same, and never divided; 
so it is there: A Power of Chancery being vested in the Judges 
of the Courts of Common Law as to some particular Cases, and 
they make equitable Constructions in Others. I must add, that 
the Fees of Officers of all sorts are setled by Acts of Assembly 
at moderate Prices, for the Ease of the Subject. . . . 

3. The Charter of Maryland — 16;^2} 

CHARLES, by the grace of GOD, of England, Scotland, 
France, and Ireland, KING, Defender of the Faith, &c. To all 
to whom these Presents shall come. Greeting. 

II. Whereas our well beloved and right trusty Subject 
CAECILIUS CALVERT, . . . hath humbly besought Leave 
of Us, that he may transport, by his own Industry, and Expence, 
a numerous Colony of the English Nation, to a certain Region, 
herein after described, . . . and that all that Region ... be 
given, granted, and confirmed unto him, and his Heirs. 

III. Know ye therefore, that WE, ... by this our present 
CHARTER ... do Give, Grant, and Confirm, unto the 
aforesaid CAECILIUS, now Baron of BALTIMORE, his 
Heirs, and Assigns, all that Part of the Peninsula . . . [etc., 
boundaries defined.] 

IV. Also We do Grant . . . unto the said Baron of 
BALTIMORE, ... all Islands and Islets within the Limits 
aforesaid . . .; And furthermore the Patronages, and Ad- 
vowsoNS of all Churches which (with the increasing Worship 
and Religion of CHRIST) within the said Region . . ., here- 
after shall happen to be built, together with Licence and Fac- 

1 Thomas Bacon, Laws of Maryland (1765). 



CHARTERS AND ESTABLISHMENTS 7 

ulty of erecting and founding Churches, Chapels, and Places 
of Worship, in convenient and suitable Places, within the 
Premises, and of causing the same to be dedicated and conse- 
crated according to the Ecclesiastical Laws of our Kingdom 
of England, with all, and singular such, and as ample Rights, 
Jurisdictions, Privileges, Prerogatives, Royalties, Liberties, 
Immunities, and royal Rights, and temporal Franchises what- 
soever, as well by Sea as by Land, within the Region . . . 
aforesaid, to be had, exercised, used, and enjoyed, as any 
Bishop of Durham, mthin the Bishoprick or County Palatine 
of Durham, in our Kingdom of England, ever heretofore hath 
had, held, used, or enjoyed, or of Right could, or ought to have, 
hold, use, or enjoy. 

V. And WE do by these Presents . . . make, create and 
CONSTITUTE HiM, the now Baron of BALTIMORE, and his 
Heirs, the True and absolute Lords and Proprietaries of 
the Region aforesaid, and of all other the Premises (except the 
before excepted) saving always the Faith and Allegiance and 
Sovereign Dominion due to US . . .; TO HOLD of US . . . 
as of our Castle of Windsor, in our County of Berks, in free and 
common Soccage, by Fealty only for all Services, and not in 
capite, nor by Knight's Service, YIELDING therefore unto 
US . . . twolNDiANARROWSof those Parts, to be delivered at 
the said Castle of Windsor, every Year, on Tuesday in Easter- 
Week: And also the fifth Part of all Gold and Silver Ore, which 
shall happen from Time to Time, to be found within the afore- 
said Hmits. 

VI. Now, That the aforesaid Region, thus by us granted and 
described, may be eminently distinguished above all other 
Regions of that Territory, and decorated with more ample 
Titles, . . .WE do . . . erect and incorporate the same 
into a PROVINCE, and nominate the same MARYLAND, 
by which name WE will that it shall from henceforth be called. 

VII. And forasmuch as WE have above made and ordained 
the now Baron of BALTIMORE, the true Lord and Proprie- 
tary of the whole Province aforesaid, . . . WE ... do grant 
unto the said now Baron, . . . and to his Heirs, for the good 



8 FOUNDATIONS OF AMERICAN POLITY 

and happy Government of the said province free, full, and 
absolute Power, by the tenor of these Presents, to Ordain, 
Make and Enact LAWS, of what kind soever, according to 
their sound Discretions, whether relating to the Public State 
of the said province, or the private Utihty of Individuals, 
of and with the Advice, Assent, and Approbation of the Free- 
Men of the same province, or of the greater Part of them, or 
of their Delegates or Deputies, whom WE will shall be called 
together for the framing of LAWS, when, and as often as Need 
shall require, by the aforesaid now Baron of BALTIMORE, 
and his Heirs, and in the Form which shall seem best to him or 
them, and the same to publish under the Seal of the aforesaid 
now Baron of BALTIMORE, and his Heirs, and duly to exe- 
cute the same upon all Persons, for the Time being, within the 
aforesaid province, and the Limits thereof, or under his or 
their Government and Power, ... by the Imposition of 
Fines, Imprisonment, and other Punishment whatsoever; even 
if it be necessary, and the Quality of the Offence require it, by 
Privation of Member, or Life . . .: And also to Remit, Re- 
lease, Pardon, and Abolish, all Crimes and Offences whatso- 
ever against such Laws, whether before, or after Judgment 
passed: ... So Nevertheless, that the Laws aforesaid be 
consonant to Reason and be not repugnant or contrary, but 
(so far as conveniently may be) agreeable to the Laws, Statutes, 
Customs and Rights, of this Our Kingdom of England. 

VIII. And Forasmuch as, in the Government of so great a 
province, sudden Accidents may frequently happen, to which 
it will be necessary to apply a Remedy, before the Freeholders 
of the said Province, their Delegates, or Deputies, can be 
called together for the framing of Laws; neither will it be fit 
that so great a Number of People should immediately, on such 
emergent Occasion, be called together, WE therefore, . . . 
do grant . . . that the aforesaid now Baron of BALTIMORE; 
and his Heirs, . . . may, and can make and constitute fit 
and wholesom Ordinances from Time to Time, to be kept and 
observed within the province aforesaid, . . . and pubHckly 
to notify the same to all Persons whom the same in any wise 



CHARTERS AND ESTABLISHMENTS 9 

do or may afifect . . . : so that the same Ordinances do not, in 
any Sort, extend to oblige, bind, change, or take away the 
Right or Interest of any Person or Persons, of, or in Member, 
Life, Freehold, Goods or Chattels. 

XVII. Moreover, We will, appoint, and ordain, and by 
these Presents, for US, our Heirs and Successors, do grant . . . 
that the same Baron of BALTIMORE, his Heirs and Assigns, 
from Time to Time, forever, shall have, and enjoy the Taxes 
and Subsidies payable, or arising within the Ports, Harbours, 
and other Creeks and Places aforesaid, with[in] the Province, 
aforesaid, for Wares bought and sold, and Things there to be 
laden, or unladen, to be reasonably assessed by them, and the 
People there as aforesaid, on emergent Occasion; to whom WE 
grant Power by these Presents, for US, our Heirs and Succes- 
sors, to assess and impose the said Taxes and Subsidies there, 
upon just Cause, and in due Proportion. 

XVIII. And furthermore . . ., WE ... do give . . . 
unto the aforesaid now Baron of BALTIMORE, his Heirs, and 
Assigns, full and absolute Licence, Power, and Authority . . . 
[to] assign, alien, grant, demise, or enfeoff so many, such, and 
proportionate Parts and Parcels of the Premises, to any Person 
or Persons willing to purchase the same, as they shall think 
convenient, to have and to hold ... in Fee-simple, or Fee- 
tail, or for Term of Life, Lives, or Years; to hold of the afore- 
said now Baron of BALTIMORE, his Heirs and Assigns, 
by . . . such . . . Services, Customs and Rents OF THIS 
KIND, as to the same now Baron of BALTIMORE, his Heirs 
and Assigns, shall seem fit and agreeable, and not immedi- 
ately of US. 



CHAPTER II 

THE POLITY OF A ROYAL PROVINCE 

Seven of the original colonies — eight, if Massachusetts be included — 
were royal provinces when they declared their independence. Although 
Massachusetts had a royal governor, its elective council gave the govern- 
ment a somewhat anomalous character. Among the duties repeatedly 
enjoined upon the royal governor was that of reporting upon the state of 
his province. The following extracts from reports by the governors of 
New York and Virginia give a substantially correct account of these two 
provincial establishments. 

4. Report of Governor Tryon on New York} 

By the Grants of this Province and other Territories to the 
Duke of York in 1663-4 and 1674, the pov^ers of Government 
were vested in him, and were accordingly exercised by his 
Governors until he ascended the Throne when his Rights as 
Proprietor merged in his Crown, and the Province ceased to 
be a charter Government. 

From that time it has been a Royal Government, and in its 
Constitution nearly resembles that of Great Britain and the 
other Royal Governments in America. The Governor is ap- 
pointed by the King during his Royal Will and pleasure by 
Letters Pattent under the Great Seal of Great Britain with very 
ample powers. He has a Council in Imitation of His Majesty's 
Privy Council. — This Board when full consists of Twelve 
Members who are also appointed by the Crown during Will & 
Pleasure ; any three of whom make a Quorum — The Province 
enjoys a Legislative Body, which consists of the Governor as 
the King's Representative; the Council in the place of the 
House of Lords, and the Representatives of the People, who are 
chosen as in England: Of these the City of New York sends 
four. — All the other Counties (except the New Counties of 

^ O'Callaghan, Documentary History of the State of New York, 1, 752-56. 
June II, 1774. 



THE POLITY OF A ROYAL PROVINCE ii 

Charlotte & Gloucester as yet not represented) send Two. — 
The Borough of Westchester, the Township of Schenectady 
and the three Manors of Rensselaerwyck, Livingston and 
Cortlandt each send one; in the whole forming a Body of Thirty 
one Representatives. 

The Governor by his Commission is authorized to convene 
them with the advice of the Council, and adjourn, prorogue 
or dissolve the General Assembly as he shall judge necessary. 

This Body has not the power to make any Laws repugnant 
to the Laws and Statutes of Great Britain. All Laws proposed 
to be made by this Provincial Legislature, pass thro' each of 
the Houses of Council and Assembly, as Bills do thro' the 
House of Commons and House of Lords in England, and the 
Governor has a Negative voice in the making and passing of all 
sueh Laws. Every Law so passed is to be transmitted to His 
Majesty under the Great Seal of the Province, within Three 
months or sooner after the making thereof and a Duplicate by 
the next conveyance, in order to be approved or disallowed by 
His Majesty; And if His Majesty shall disallow any such Law 
and the same is signified to the Governor under the Royal Sign 
Manual or by Order of his Majesty's Privy Council, from 
thenceforth such law becomes utterly void. — A law of the Pro- 
vince has limited the duration of the Assembly to seven years. 

The Common Law of England is considered as the Funda- 
mental law of the Province and it is the received Doctrine that 
all the Statutes (not Local in their Nature, and which can be 
fitly appHed to the circumstances of the Colony) enacted before 
the Province had a Legislature, are binding upon the Colony, 
but that Statutes passed since do not affect the Colony, unless 
by being specially named, such appears to be the Intentions 
of the British Legislature. 

The Province has a Court of Chancery in which the Governor 
or Commander in chief sits as Chancellor and the Practice of 
the Court of Chancery in England is pursued as closely as 
possible. The officers of this Court consist of a Master of the 
Rolls newly created — Two Masters. — Two Clerks in Court. 
— A Register. — An Examiner, and a Serjeant at Arms. 



12 FOUNDATIONS OF AMERICAN POLITY 

Of the Courts of Common Law the Chief is called the Su- 
preme Court. — The Judges of which have all the powers of the 
King's Bench, Common Pleas and Exchequer in England. This 
Court sits once every three months at the City of New York, 
and the practice therein is modelled upon that of the King's 
Bench at Westminster. — Tho' the judges have the powers 
of the Court of Exchequer they never proceed upon the Equity 
side. — The court has no Officers but one Clerk, and is not 
organized nor supplied with any officers in that Department of 
the Exchequer, which in England has the care of the revenue. 
— The judges of the Supreme Court hold their offices during 
the King's Will and Pleasure and are Judges of Nisi prius of 
Course by act of Assembly, & Annually perform a Circuit 
through the Counties. — The Decisions of this Court in General 
are final unless where the Value exceeds £300. Sterling, in 
which case the subject may be relieved from its errors only by 
an application to the Governor & Council, and where the Value 
exceeds £500 sterling an appeal lies from the Judgment of the 
latter to His Majesty in Privy Council. 

By an Act of the Legislature of the Province suits are pro- 
hibited to be brought in the Supreme Court where the Value 
demanded does not exceed £20, Currency. 

The Clerk's Office of the Supreme Court has always been held 
as an Appendage to that of the Secretary of the Province. 

There is also in each County an Inferior Court of Common 
Pleas, which has the Cognizance of all actions real, personal & 
mixed, where the matter in demand is above £5. in value. — 
The practice of these Courts is a mixture between the Kings 
Bench and Common Pleas at Westminster. — Their Errors 
are corrected in the first Instance by Writ of Error brought 
into the Supreme Court; and the Judges hold their offices 
during pleasure. — The Clerks of these Courts also hold their 
offices during pleasure and are appointed by the Governor, 
except the Clerk of Albany who is appointed under the King's 
Mandate. 

Besides these Courts the Justices of peace are by Act of 
Assembly empowered to try all causes to the amount of £5. 



THE POLITY OF A ROYAL PROVINCE 13 

Currency, (except where the Crown is concerned or where the 
Title of Lands shall come into Question; — and Actions of 
Slander) but the parties may either of them demand a jury of 
Six Men. — If wrong is done to either party, the person 
injured may have a Certiorari from the Supreme Court, tho' 
the remedy is very inadequate. 

The Courts of Criminal Jurisdiction are Correspondent to 
those in England. — ■ The Supreme Court exercises it in the City 
of New York, as the King's Bench does at Westminster. — The 
Judges when they go the Circuit have a Commission of Oyer 
and Terminer and General Gaol Delivery; and there are Courts 
of Sessions held by the Justices of the peace; the powers of 
which and their proceedings correspond with the like Courts 
of England. — The Office of Clerk of the Sessions, is invari- 
ably connected with that of the Clerk of the Inferior Court of 
Common Pleas in the respective Counties. 

By acts of the Provincial Legislature the Justices of the Peace 
have an extraordinary Jurisdiction with respect to some 
offences by which any three Justices (one being of the Quorum) 
where the offender does not find Bail in 48 Hours after being 
in the Custody of the Constable, may try the party without 
any [ . . . ] or a jury, for any offence under the Degree of 
Grand Larceny; and inflict any punishment for these small 
offences at their Discretion, so that it exceeds (qy? extends) 
not to Life or Limb. — And any three Justices of the Peace 
(one being of the Quorum) and Five Freeholders have power 
without a Grand or Petty Jury to proceed against and try in 
a Summary Way, Slaves offending in certain cases, and punish 
them even with death. 

The Duty of His Majesty's Attorney General of the Province 
is similar to the Duty of the Officer in England, and the Master 
of the Crown OflSce: He is appointed by the Crown during 
Pleasure, and His Majesty has no Sollicitor General nor Coun- 
cil in the Province, to assist the Attorney General upon any 
Occasion. 

There are two other Courts in the Province. The Court of 
Admiralty which proceeds after the Course of the Civil Law 



14 FOUNDATIONS OF AMERICAN POLITY 

in matters within its Jurisdiction, which has been so enlarged 
by divers Statutes as to include almost every breach of the 
Acts of Trade. — From this Court an appeal lies to a Superior 
Court of Admiralty, lately Established in North America by 
Statute; before this Establishment an appeal only lay to the 
High Court of Admiralty of England. 

The Prerogative Court concerns itself only in the Probate of 
wills and in matters relating to the Administration of the 
Estates of Intestates and granting Licences of Marriages. The 
Governor is properly the Judge of this Court but it has been 
usual for him to act in general by a Delegate. 

The Province is at present divided into fourteen Counties, 
viz — The City and County of New York — The County of 
Albany — Richmond (which comprehends the whole of Staten 
Island) Kings, Queens and Suffolk (which include the whole of 
Nassau or Long Island) Westchester, Dutches, Ulster, Orange, 
Cumberland, Gloucester, Charlotte and Tryon. — For each of 
these Counties a Sheriff and one or more Coroners are appointed 
by the Governor who hold their offices during pleasure. 

As to the Military power of the Province, the Governor for 
the time being is the Captain General and Commander in Chief 
and appoints all the Provincial Mihtary officers during 
pleasure. 

5. Report of Governor Gooch on Virginia} 

The Const, of ye Gov't, resembles Gt. Britn. as near as may 
be: ist in the Point of Legislature ye Govr. in Place of ye Kg. 
has the Power of caUing, Prorogueing or disolv'g Gen. Assem- 
blies wch represent ye Parliament. This Assembly consists of 
2 Houses. Ye upper is composed only of ye council in number 
12, who are of ye Principal Gentlemen of ye Country, & who 
are supplyed from time to time (in vacancies) by Ks nomina- 
tion under his sign manual. The lower House ye House of Bur- 
gesses is composed of Representatives chosen by ye majority 

^ " Queries from ye Lds of Trade to Sr Wm. Gooch Govr of Virginia & 
his Answers Abridged," in Virginia Magazine of History, in, 1 14-17. I 
have edited the text freely, in order to make intelligible certain abbre- 
viations, like H of B, Chan., N.N., etc. 



THE POLITY OF A ROYAL PROVINCE 15 

of ye Freeholders, two in each county. One for Wmsburgh, 
one for Norfolk, one for Ja'stown & ye Coll. Wee have now 
including ye North Neck 44 Counties, which makes ye number 
of Burgesses 92. All Bills for laying duties on Commodities & 
Taxes on the people take rise in ye House of Burgesses, and 
generally all Bills prepared on petitions or Representations of 
ye People are first moved there; but either House may frame 
Bills as they find most expedient for ye publick service. The 
Bills pass through ye like Forms as in Parliament, & when 
passed both Houses are enrolled for ye Govrs assent commonly 
given ye last day of the session. 

But ye Govr has a negative & may reject any bill he thinks 
fitt. For ye administration of Justice there are held monthly 
Courts in each County by persons commissioned by ye Govr, 
who not only have ye power of Justices of ye Peace but have 
cognizance of all suits of wht value soever arising within their 
respective Jurisdictions, both at common Law & Chancery: 
excepting only such criminal offences as are punishable by loss 
of Life or Member. For ye city of Wms there is also a Court of 
Hustins, held monthly before ye mayor & aldn for tryal of all 
suits at Common Law arising wth in town & not exceeding 2o£ 
or its value. Ye same for Norfolk. There are ye Inferior Courts 
of ye Govmt & from these Appeal lies in ye gl Ct. appellt givg 
security to Prosect wth effect. 

The General Court consists of ye Govr & Council, any 5 of 
whom make a Quorum. This Court hath Jurisdiction of all 
Causes Real, Pers'l & mixt at Common Law bro't thither 
originally not under £10 ster; or by appeal or superseds (wch 
in ye nature of a writ of error) from ye Inferiour Courts. All 
criminal offences are here tryable & it is also a Court of Chan- 
cery for matters of a great value but by act of A. as appeal Hes 
from an Inferior Court unless ye Debt, Damage or thing in 
Demand Exclusive of Costs exceed ye value of £5, excepting 
only wch the Titles or Bounds of Land are in question, and 
appeals lie to King in Council for £300 ster. or upwards. There 
are two Courts of Oyer and Terminer held yearly ye 2nd Tues- 
day in June, & Xs for trying all criminals yt happen to be com- 



i6 FOUNDATIONS OF AMERICAN POLITY 

mitted after the respective General Courts. Ye Judges here 
are only such as are members of ye Council & sitt by ye Govrs 
commission pursuant to his Majesty's Instructn. For punish- 
ing slaves for capitl Crimes a commission of Oyer and Term- 
iner issues from ye Gr. to ye Justices of ye County where ye 
offence is committed by proof of Evidence without any Jury, 
& on convictions they award exn & set a value on ye slave, 
which is afterwards paid to ye owner by ye General Assembly 
as an encouragement to People to discover ye villanies of their 
slaves. For breaches of the act of Trade & for determining 
controversies concerning salvage, mariner's wages & other 
maritime affairs, their is a Court of admiralty held before a 
Judge constituted under ye Seal of ye high Cot. of admty. of 
Great Britain; to this Cot belong an advocate, a Register & 
Marshal appointed by ye Govr. who is also a * * vice admiral 
of all ye Seas, Rivrs, Creeks & Coasts within his Govmt. This 
Court is only held as occasion requires & an appeal lyes to ye 
K. Council. The Govr has also a Comn for trying Pirates. 

There is also a Cot. of ye comissary of ye Ld. Bp. of Londn 
wch only meddles with the Punishment of the Immors of ye 
Clergy, & proceeds by monition, suspension or Deprivation 
according to the offence & an appeal lyes to the Delegates 
appd. by Ks. Com. in England. 

The Governour is invested with a Power Pardoning all 
Crimes except Treason & willful Murder, & in these he has a 
Power of suspending ye execun by reprieve till his Majs 
Pleasure is known. The Govr. can remitt all fines & For- 
feitures accruing to ye Crown to ye value of £io ster. & if above 
he may suspend the levying till ye Ks pleasure be known. But 
the inhabitants of ye N. Neck are to be excepted ye Proprietor 
whereof has by his Charter all the Fines & Forfeitures Felons 
good & deodances within the Limits of his Grant. 

For matters of State there is a Council appointed by ye K. 
to be assist, with their advice to ye Govr. in all things touching 
his Majs service viz. the disposing of his Lands, managemt. of 
his Revenue, nominating or Removl of Js of Peace, Sheriffs, 
coroners, or otheT officers of trust who receive ye Comn from 



THE POLITY OF A ROYAL PROVINCE 17 

ye Govr. for ye better ordering the tributary Indians & making 
War or Peace with foreign Indians & various other Matters 
wch concern the Publick Quiet of ye Govt & do not fall under 
the direction of Positive Laws. There is no Sallary annexed 
to this office, but as the Council compose the upper House of 
Assembly & are also Judges of the General Court there is an 
appt. of £600 p an. out of ye settled Revenue wch is proportd. 
& divided among them according to their respective attendee 
on these two Services. And such of them as attend at the Court 
of Oyer & Terminer have their Proportion of £100 allowed out 
of ye Revenue for each Court. 



CHAPTER III 

THE POWERS OF A ROYAL GOVERNOR 

The royal provinces — Massachusetts excepted — had no charters. 
The formal powers of the governor were laid down in his commission. 
More specific duties were enjoined upon him in the instructions which 
accompanied his commission or were sent out from time to time. In all 
the provinces the theoretical authority of the governor was in practice 
greatly circumscribed by the extraordinary development of representative 
assemblies. The sharp injunctions of the instructions bear witness to 
colonial practices which often thwarted the purposes of the Crown. 

6. Commission of Francis Bernard as Governor of New 
Jersey — 1758} 

GEORGE THE SECOND by the Grace of God, of Great 
Britain, France and Ireland King, Defender of the Faith, &c. 

To Our trusty and Wellbeloved Francis Bernard Esq"". 
Greeting: We reposing especial Trust and Confidence in the 
Prudence, Courage and Loyalty of you the said Francis Ber- 
nard, of our especial Grace certain Knowledge and meer 
motion, have thought fit to constitute and appoint, and by 
these Presents do constitute and appoint you ... to be Our 
Cap'' General and Governor in Chief in & over Our Province 
of Nova Ceesarea or New^ Jersey, Viz : the Division of East and 
West New Jersey in America, which we have thought fit to 
reunite into one Province and settle under one entire Govern- 
ment. 

And We do hereby require and command you to do and 
execute all things in due manner, that shall belong unto your 
said Command and the Trust We have reposed in you, accord- 
ing to the several Powers and Directions granted or appointed 
you by this present Commission, and the Instructions and 
Authorities herewith given you, or by such further Powers, 

^ Ricord and Nelson, Documents relating to the Colonial History of the 
State of New Jersey, ix, 23-34 passim. 



A ROYAL GOVERNOR 19 

Instructions and Authorities as shall at any time hereafter be 
granted or appointed you under Our Signet and Sign Manual 
or by Our Order in Our Privy Council, and according to such 
reasonable Laws and Statutes, as now are in Force, or here- 
after shall be made and agreed upon by you, with the Advice 
and Consent of Our Council and the Assembly of Our said 
Province under your Government, in such maimer and form as 
is hereafter expressed. . . . 

And We do hereby give and grant unto you full Power and 
Authority to suspend any of the Members of Our said Council, 
from sitting, voting and assisting therein, if you shall find just 
Cause for so doing. 

And if it shall at any time happen, that by the Death, 
Departure out of Our said Province, or suspension of any of 
Our said Councillors or otherwise, there shall be a Vacancy in 
Our said Council, any three whereof We do hereby appoint 
to be a Quorum ; Our Will and Pleasure is, that you signify the 
same unto us by the first opportunity, that We may under Our 
Signet and Sign Manual constitute and appoint others in their 
Stead. . . . 

And We do hereby give and grant unto You full Power & 
Authority with the Advice and Consent of Our said Council, 
from time to time as need shall require, to summon and call 
general Assemblies of the said Freeholders and Planters within 
your Government, in manner and form as shall be directed in 
Our Instructions, which shall be given you together with this 
Our Commission. . . . 

And you . . ., with the Consent of Our said Coimcil, [and] 
Assembly or the Major Part of them respectively, shall have 
full Power and Authority to make, constitute and ordain Laws, 
Statutes and Ordinances for the publick Peace, Welfare & good 
Government of Our said Province and of the People and In- 
habitants thereof, and such others as shall resort thereto, and 
for the Benefit of Us, Our Heirs and Successors; which said 
Laws, Statutes and Ordinances are not to be repugnant, but as 
near as may be agreable unto the Laws and Statutes of this Our 
Kingdom of Great Britain ; provided that all such Laws, Stat- 



20 FOUNDATIONS OF AMERICAN POLITY 

utes and Ordinances, of what Nature or duration soever, be, 
within three Months or sooner after the making thereof, trans- 
mitted unto Us under Our Seal of Nova Caesarea or New Jersey, 
for Our Approbation or disallowance of the same, as also Dupli- 
cates thereof by the next Conveyance. 

And in case any or all of the said Laws, Statutes and Ordi- 
nances (being not before confirm'd by Us) shall at any time 
be disallow'd and not approved, and so signified by Us, Our 
Heirs or Successors under Our or their Sign Manual and Signet, 
or by Order of Our or their Privy Council unto you ... or to 
the Commander in Chief of Our said Province for the time 
being, then such and so many of the said Laws, Statutes and 
Ordinances as shall be so disallowed and not approved, shall 
from henceforth cease, determine and become utterly void and of 
none Effect, any thing to the contrary thereof notwithstanding. 

And to the end that nothing may be passed or done by Our 
said Council or Assembly, to the Prejudice of us, Our Heirs 
and Successors, We Will df Ordain, that you . . . shall have 
and enjoy a Negative Voice in the making and passing of all 
Laws, Statutes and Ordinances, as aforesaid. 

And you shall and may likewise from time to time, as you 
shall judge it necessary, adjourn, prorogue and dissolve all 
General Assemblies, as aforesaid. . . . 

And We do further by these Presents give and grant unto 
you . . . full Power and Authority with the Advice and Con- 
sent of Our said Council, to erect, constitute and appoint such 
& so many Courts of Judicature and publick justice within Our 
said Province under your Government, as you and they shall 
think fit and necessary for the hearing and determining all 
causes, as well Criminal as Civil, according to Law and 
Equity, . . . 

And We do hereby authorize and impower You to constitute 
and appoint Judges (and in Cases requisite Commissioners of 
Oyer and Terminer), Justices of the Peace, and other necessary 
Officers and Ministers in Our said Province for the better 
Administration of Justice and putting the Laws in Execution, 
and to administer or cause to be administered unto them such 



A ROYAL GOVERNOR 21 

Oath or Oaths as are usually given for the due Execution and 
Performance of Offices and Places, and for the clearing of 
Truth in Judicial Causes. 

And We do hereby give and grant unto you full Power and 
Authority where you shall see Cause, or shall judge any 
offender or offenders in criminal Matters, or for any Fines or 
Forfeitures due unto Us, fit Objects of Our Mercy, to pardon 
all such Offenders, and to remit all such Offences, Fines and 
Forfeitures, Treason and Willful Murder only excepted, in 
which Cases you shall likewise have Power upon extraordinary 
Occasions to grant Reprieves to the Offenders, untill and to the 
Intent Our Royal Pleasure may be Known therein. 

And We do by these Presents authorize and impower you to 
collate any Person or Persons to any Churches, Chapels or 
other Ecclesiastical Benefices within Our said Province, as 
often as any of them shall happen to be void. 

And We do hereby give and grant unto you ... by your- 
self or by your Captains and Commanders by you to be 
authorized, full Power and Authority to levy, arm, muster, 
command, and imploy all Persons whatsoever residing within 
Our said Province of Nova Cassarea or New Jersey under your 
Government, and, as Occasion shall serve, to march from one 
place to another, or to embark them for the resisting and with- 
standing of all Enemies, Pirates and Rebels, both at Sea and 
Land, and to transport such Forces to any of Our Plantations 
in America (if necessity shall require) for the Defence of the 
same against the invasion or Attempts of any of Our Enemies, 
and such Enemies, Pirates and Rebels, if there shall be occa- 
sion, to persue and prosecute in or out of the Limits of Our said 
Province and Plantations or any of them; and, if it shall so 
please God, them to vanquish, apprehend and take, and being 
taken either according to Law to put to Death, or Keep and 
preserve alive at your Discretion, & to execute Martial Law 
in time of Invasion or other times when by Law it may be 
executed, and to do and execute all and every other thing and 
things which to jOur Captain General and Governor in Chief 
doth or ought of Right to belong. . . . 



22 FOUNDATIONS OF AMERICAN POLITY 

Our further Will & Pleasure is, that all publick Money raised 
or which shall be raised by any Act hereafter to be made within 
Our said Province, be issued out by Warrant from You, by 
and with the advice & Consent of Our Council, and disposed of 
by you for the Support of the Government, and not other- 
wise. . . . 

7. Instructions to Governor Bernard of New Jersey — 1758.^ 

INSTRUCTIONS to Our Trusty and Well beloved FRAN- 
CIS BERNARD ESQ^ Our Captain General and Governor in 
Chief in and over Our province of Nova Caesarea or New 
Jersey in America. 

1°*^ With these Our Instructions your [you] will receive Our 
Commission under Our Great Seal of Great-Britain, consti- 
tuting You Our Capt° General and Governor in Chief in and 
over Our province of New Jersey, You are therefore with all 
convenient Speed to repair to Our said Province, and being 
there arrived, You are to take upon you the Execution of the 
Peace [Place] and Trust We have reposed in You, and forth- 
with to call together the Members of our Council in and for that 
province, viz*. . . . 

4. You are forthwith to communicate to Our said Council 
such and so many of these Our Instructions wherein their 
Advice and Consent are required, as likewise all such others 
from time to time as you shall find convenient for Our Service 
to be imparted to them. 

5. You are to permit the Members of Our said Counb[c]il 
to have and enjoy Freedom of Debate and Vote in all affairs of 
pubhck Concern, that may be debated in Council. . . . 

9. And in the Choice and nomination of the Members of 
Our said Council, as also of the Chief Officers, Judges, Assistant 
Justices and Sheriffs; You are always to take Care, that they 
be men of good life, well affected to our Government, of good 
Estates, and of Abilities suitable to their Employments. . . . 

12, And Our Will and Pleasure is, that with all convenient 

^ Ricord and Nelson, Documents relating to the Colonial History of the 
State of New Jersey, ix, 40-77 passim. 



A ROYAL GOVERNOR 23 

Speed you call together one general Assembly for the enacting 
of Laws for the joint and mutual Good of the whole province. . . . 

14. You are to choose in the passing of Laws, that the Stile 
of enacting the same be by the Governor, Council and Assembly 
and no other; You are also, as much as possible, to observe in 
the passing of all Laws, that whatever may be requisite upon 
each different matter be accordingly provided for by a different 
Law, without Intermixing in one and the same Act such things 
as have no proper relation to each other, and you are more 
especially to take care, that no Clause or Clauses be inserted 
in or annexed to any Act, which shall be foreign to what the 
Title of such respective Act imports; and that no perpetual 
Clause be made part of any temporary Law; and that no Act 
whatsoever be suspended, altered, continued, revived or re- 
peated [repealed] by general Words, but that the Title and Date 
of such Act so suspended, alter'd, continued, revived or repealed 
be particularly mentioned and expressed in the enacting 
part. 

15. And whereas several Laws have formerly been enacted 
in several of Our Plantations in America, for so short a time, 
that the Assent or refusal of Our Royal predecessors cou'd not 
be had thereupon before the time, for which such Laws were 
enacted, did expire; You shall not for the future give Your 
Assent to any Law; that shall be enacted for a less time than 
two Years, except in the Cases hereinafter mention'd. And 
you shall not re-enact any Law to which the Assent of Us or 
Our Royal predecessors has once been refused, without express 
Leave for that purpose first obtained from us, upon a full 
Representation by you to be made to Our Commissioners for 
Trade and Plantations, in order to be laid before Us, of the 
reason and necessity for passing such Law, nor give your 
Assent to any Law for repeating any other act pass'd in your 
Government, whether the same is [has] or has not received Our 
Royal Approbation, unless You take care that there be a 
Clause inserted therein suspending and deferring the Execu- 
tion thereof until Our Pleasure be known concerning the 
same. 



24 FOUNDATIONS OF AMERICAN POLITY 

' i6. And whereas great Mischiefs do arise by the Frequent 
passing Bills of an unusual and extraordinary Nature and 
Importance in Our Plantations, which Bills remain in force 
there from the time of enacting until Our Pleasure be signified 
to the contrary; We do hereby Will and require you not to pass 
or give your Consent hereafter to any Bill or Bills in the Assem- 
bly of Our said Province of unusual and extraordinary Nature 
and importance, wherein Our Prerogative, or the Property of 
Our Subjects may be prejudiced, or the Trade or Shiping of this 
Kingdom any Ways affected, until you shall have first trans- 
mitted to Our Commissioners for Trade and Plantations, in 
order to be laid before Us, the Draught of such a Bill or Bills, 
and shall have receiv'd Our Royal Pleasure thereupon, unless 
you take care in the passing of any Bill of such Nature as 
before mentioned, that there be a Clause inserted therein, sus- 
pending and deferring the Execution thereof untill Our 
Pleasure shall be known concerning the same. . . . 

21^*^ // is Our express Will and Pleasure, that no Law for 
raising any imposition on Wines or other strong Liquors be 
made to continue for less than one whole Year, and that all 
other Laws made for the supply and Support of the Govern- 
ment shall be indefinite and without Limitation, except the 
same be for a temporary Service, and which shall expire and 
have their full effect within the time therein prefixt. . . . 

23. Whereas several Inconveniences have arisen to Our 
Governments in the Plantations by Gifts and Presents made 
to Our Governors by the general Assembhes; you are therefore 
to propose unto the Assembly at their first meeting after your 
Arrival, and to use your utmost Endeavour with them, that 
an Act be passed for raising and settling a publick Revenue for 
defraying the necessary Charge of the Government of Our 
said Province, and that therein Provision be particularly made 
for a competent Salary to yourself. . . . 

28. You are to transit Authentick Copies of all Laws, Stat- 
utes and Ordinances that are now made and in Force which 
have not yet been sent, or which at any time hereafter shall be 
made or enacted within the said province. . . . 



A ROYAL GOVERNOR 25 

2g And you are upon all Occasions to send unto Our Com- 
missioners for Trade and plantations only, a particular Account 
of all your proceedings and of the Condition of Affairs within 
your Government. ... 



CPiAPTER IV 

ROYAL GOVERNOR AND REPRESENTATIVE ASSEMBLY 

The provincial governor, as Franklin said, had two masters: by virtue 
of his commission he was the agent of the Crown and the guardian of 
imperial interests; yet he was also the executive head of the provincial 
government and dependent upon local support. In all but four of the 
colonies the governor depended for his salary on grants of the assembly. 
In Georgia alone he was paid by the Crown. In Virginia and Maryland 
he was supported by permanent grants; in North Carolina, his salary was 
derived from quit-rents. The century-long struggle between Crown and 
Parliament was repeated in many ways in the colonies in the half -century 
before the Revolution. Pitching upon the old maxim that a redress of 
grievances must precede a grant of supplies, the colonial assembhes ex- 
torted legislation repeatedly by withholding the governor's salary. The 
encroachments of the assemblies upon the executive and the evils incident 
to these colonial practices are vividly set forth by Thomas Pownall, at 
one time governor of Massachusetts and later of South Carolina. 

8. The Poijtts at Issue between the Colonies and the Crown} 

The King's commission to his governor, which grants the 
power of government, and directs the calling of a legislature, 
and the establishing courts, at the same time that it fixes the 
governor's power, according to the several powers and direc- 
tions granted and appointed by the commission and instruc- 
tions, adds, "and by such further powers, instructions, and 
authorities, as shall, at any time hereafter, be granted or 
appointed you, under our signet or sign manual, or by our 
order in our privy council." It should here seem, that the 
same power which framed the commission, with this clause in 
it, could also issue its future orders and instructions in conse- 
quence thereof: but the people of the colonies say, that the 
inhabitants of the colonies are entitled to all the privileges of 
Enghshmen; that they have a right to participate in the legis- 
lative power; and that no commands of the crown, by orders in 
council, instructions, or letters from Secretaries of State, are 
1 Pownall, Administration of the Colonies (1765), 39-47 passim. 



GOVERNOR AND ASSEMBLY 27 

binding upon them, further than they please to acquiesce under 
such, and conform their own actions thereto; that they hold this 
right of legislature, not derived from the grace and will of the 
crown, and depending on the commission which continues at 
the will of the crown; that this right is inherent and essential 
to the community, as a community of Englishmen: and that 
therefore they must have all the rights, privileges, and full and 
free exercise of their own will and liberty in making laws, which 
are necessary to that act of legislation, — uncontrouled by any 
power of the crown, or of the governor, preventing or suspend- 
ing that act; and, that the clause in the commission, directing 
the governor to call together a legislature by his writs, is de- 
claravtive and not creative ; and therefore he is directed to act 
conformably to a right actually already existing in the people, 
&:c. . . . 

Every subject, born within the realm, under the freedom of 
the Government of Great Britain, or by adoption admitted to 
the same, has an essential indefeasible right to be governed, 
under such a mode of government as has the unrestrained 
exercise of all those powers which form the freedom and rights 
of the constitution; and therefore, " the crown cannot establish 
any colony upon — or contract it within a narrower scale than 
the subject is entitled to, by the great charter of England." 
The government of each colony must have the same powers, 
and the same extent of powers that the government of Great 
Britain has, — and must have, while it does not act contrary 
to the laws of Great Britain, the same freedom and independ- 
ence of legislature, as the parliament of Great Britain has. 
This right (say they) is founded, not only in the general prin- 
ciples of the rights of a British subject, but is actually declared, 
confirmed, or granted to them in the commissions and charters 
which gave the particular frame of their respective constitu- 
tions. If therefore, in the first original establishment, Uke the 
original contract, they could not be established upon any scale 
short of the full and compleat scale of the powers of the British 
government, — nor the legislature be established on any thing 
less than the whole legislative power; much less can this power 



28 FOUNDATIONS OF AMERICAN POLITY 

of government and legislature, thus established, be governed, 
directed, restrained or restricted, by any posterior instructions 
or commands by the letters of Secretaries of State. But upon 
the supposition, that a kind of general indetermined power in 
the crown, to superadd instructions to the commissions and 
charter be admitted, where the Colonists do not make a ques- 
tion of the case wherein it is exerted, yet there are particular 
cases wherein both directive and restrictive instructions are 
given, and avowedly not admitted by the Colonists. It is a 
standing instruction, as a security of the dependence of the 
government of the colonies on the mother country, that no 
acts wherein the King's Rights, or the rights of the mother 
country or of private persons can be affected, shall be enacted 
into a law without a clause suspending the effect thereof, till 
his Majesty's pleasure shall be known. This suspending clause 
is universally rejected on the principles above, because such 
suspension disfranchises the inherent full power of legislature, 
which they claim by their rights to the British liberties, and 
by the special declarations of such in their charters. It does 
not remove this difficulty by saying, that the crown has already 
in its hands the power of fixing this point, by the effect of its 
negative given to its governor. It is said, that if the crown 
should withdraw that instruction, which allows certain bills 
to be passed into laws with a suspending clause, which instruc- 
tion is not meant as a restriction upon, but an indulgence to 
the legislatures; that if the crown should withdraw this instruc- 
tion, and peremptorily restrain its governor from enacting 
laws, under such circumstances as the wisdom of government 
cannot admit of, that then these points are actually fixed by the 
true constitutional power; but whereever it is so said, I must 
repeat my idea, that this does not remove the difficulty. For 
waving the doubt which the Colonists might raise, especially 
in the charter colonies, how far the governor ought, or ought 
not, to be restricted from giving his assent in cases contrary 
only to instructions, and not to the laws of Great Britain; 
waving this point, let administration consider the effects of 
this measure. In cases where the bills, offered by the two 



GOVERNOR AND ASSEMBLY 29 

branches, are for providing laws, absolutely necessary to the 
continuance, support, and exercise of government, and where 
yet the orders of the crown, and the sense of the people, are so 
widely different as to the mode, that no agreement can ever 
be come to in these points. — Is the government and adminis- 
tration of the government of the colonies to be suspended? 
The interest, perhaps the being of the plantations, to be haz- 
arded by this obstinate variance, and can the exercise of the 
crown's negative, in such emergencies, and with such effect, 
ever be taken up as a measure of administration? And when 
every thing is thrown into confusion, and abandoned even to 
ruin by such measure, will administration justify itself by say- 
ing, that it is the fault of the Colonists? On the contrary, this 
very state of the case shows the necessity of some other 
remedy, . . . 

In the course of examining these matters, will arise to consid- 
eration the following very material point. As a principal tie of 
the subordination of the legislatures of the colonies on the 
government of the mother country, they are bound by their 
constitutions and charters, to send all their acts of legislature 
to England, to be confirmed or abrogated by the crown; but 
if any of the legislatures should be found to do almost every 
act of legislature, by votes or orders, even to the repealing the 
effects of acts, suspending estabhshments of pay, paying ser- 
vices, doing chancery and other judicatory^business: if matters 
of this sort, done by these votes and orders, never reduced into 
the form of an act, have their effect without ever being sent 
home as acts of legislature, or submitted to the allowance or 
disallowance of the crown: If it should be found that many, 
or any of the legislatures of the colonies carry the powers of 
legislature into execution, independent of the crown by this 
device, — it will be a point to be determined how far, in such 
cases, the subordination of the legislatures of the colonies to 
the government of the mother country is maintained or sus- 
pended ; — or if, from emergencies arising in these govern- 
ments, this device is to be admitted, the point, how far such is 
to be admitted, ought to be determined; and the validity of 



30 FOUNDATIONS OF AMERICAN POLITY 

these votes and orders, these Senatus Consulta so far declared. 
For a point of such great importance in the subordination of 
the colony legislatures, and of so questionable a cast in the 
valid exercise of this legislative power, ought no longer to 
remain in question. . . . 

9. ''Every Proprietary Governor has Two Masters."^ 

It is by this Time apparent enough, that tho' the proprietary 
and popular interests spring from one and the same Source, 
they divide as they descend : That every proprietary Governor, 
for this Reason, has two Masters; one who gives him his Com- 
mission, and one who gives him his Pay: That he is on his good 
Behaviour to both: That if he does not fulfil with Rigour every 
proprietary Command, however injurious to the Province or 
offensive to the Assembly, he is recall'd : That if he does not 
gratify the Assembly in what they think they have a right to 
claim, he is certain to live in perpetual Broils, tho' uncertain 
whether he shall be enabled to live at all. And that, upon the 
whole, to be a Governor upon such Terms, is to be the most 
wretched Thing alive. 

Sir William Keith could not be ignorant of this: And there- 
fore, however he was instructed here at Home, either by his 
Principal or the Lords of Trade, resolv'd to govern himself 
when he came upon the Spot, by the governing Interest there. 
— So that his Administration was wholly different from that of 
his two Predecessors. 

With as particular an Eye to his own particular Emolument 
he did indeed make his first Address to the Assembly. — But 
then all he said was in popular I^anguage. — He did not so 
much as name the Proprietary: And his Hints were such as 
could not be misunderstood, that in case they would pay him 
well, he would serve them well. 

The Assembly, on the other Hand, had Sense enough to dis- 
cern, that this was all which could be required of a Man who 
had a Family to maintain with some Degree of Splendor, and 

1 Benj. Franklin, An Historical Review of the Constitution and Govern- 
ment of Pennsylvania, (1759) 72-73. 



GOVERNOR AND ASSEMBLY 31 

who was no richer than Plantation Governors usually are: In 
short, they beheved in him, were liberal to him, and the Returns 
he annually made them were suitable to the Confidence they 
plac'd in him. — So that the proper Operation of one Master- 
Spring kept the whole Machine of Government, for a consid- 
erable Period of Time, in a more consistent Motion than it had 
ever known before. 

Of all political Cements reciprocal Interest is the strongest : 
And the Subjects Money is never so well disposed of, as in the 
Maintenance of Order and Tranquility, and the Purchase of 
good Laws; for which Felicities Keith's Administration was 
deservedly memorable. . . . 

10. The Power of the Purse} 

The crown does, by its instructions to its governors, order 
them to require of the legislature a permanent support. This 
order of the crown is generally, if not universally rejected, by 
the legislatures of the colonies. The assemblies quote the pre- 
cedents of the British constitution, and found all the rights and 
privileges which they claim on the principles thereof. They 
allow the truth and fitness of this principle in the British con- 
stitution, where the executive power of the crown is immedi- 
ately administred by the King's Majesty; yet say, under the 
circumstances in which they find themselves, that there is no 
other measure left to them to prevent the misapplications of 
public money, than by an annual voting and appropriation of 
the salaries of the governor and other civil officers, issuing from 
monies lodged in the hands of a provincial treasurer appointed 
by the assemblies: For in these subordinate governments, 
remote from his Majesty's immediate influence, administred 
oftentimes by necessitous and rapacious governors who have 
no natural, altho' they have a political connection with the 
country, experience has shewn that such governors have mis- 
applied the monies raised for the support of government, so 
that the civil officers have been left unpaid, even after having 
been provided for by the assembly. The point then of this very 
^ Pownall, Administration of the Colonies (1765), 50-53. 



32 FOUNDATIONS OF AMERICAN POLITY 

important question comes to this issue, whether the incon- 
veniencies arising, and experienced by some instances of mis- 
appHcations of appropriations (for which however there are in 
the King's courts of law, due and sufficient remedies against 
the offender) are a sufficient reason and ground for establishing 
a measure so directly contrary to the British constitution: and 
whether the inconveniencies to be traced in the history of the 
colonies, through the votes and journals of their legislatures, 
in which the support of governors, judges, and officers of the 
crown will be found to have been withheld or reduced on occa- 
sions, where the assemblies have supposed that they have had 
reason to disapprove the nomination, — or the person, or his 
conduct; — whether, I say, these inconveniencies have not 
been detrimental, and injurious to government; and whether, 
instead of these colonies being dependent on, and governed 
under, the officers of the crown, the scepter is not reversed, 
and the officers of the crown dependent on and governed by the 
assemblies, as the Colonists themselves allow, that this measure 
"renders the governor, and all the other servants of the crown, 
dependent on the assembly." This is mere matter of experi- 
ence; and the fact, when duly enquired into, must speak for 
itself : — but the operation of this measure does not end here ; 
it extends to the assuming by the assemblies the actual execu- 
tive part of the government in the case of the revenue, than 
which nothing is more clearly and unquestionably settled in 
the crown. In the colonies the treasurer is solely and entirely 
a servant of the assembly or general court; and although the 
monies granted and appropriated be, or ought to be, granted 
to the crown on such appropriation, the treasurer is neither 
named by the crown, nor its governor, nor gives security to the 
crown or to the Lord High Treasurer, (which seems the most 
proper) nor in many of the colonies, is to obey the governor's 
warrant in the issue, nor accounts in the auditor's office, nor in 
any one colony is it admitted, that he is Kable to such account. 
In consequence of this supposed necessity, for the assembly's 
taking upon them the administration of the treasury and 
revenue, the governor and servants of the crown, in the ordin- 



GOVERNOR AND ASSEMBLY 33 

ary revenue of government, are not only held dependent on 
the assembly, but all services, where special appropriations are 
made for the extraordinaries which such services require, are 
actually executed and done by commissioners appointed by 
the assembly, to whose disposition such appropriations are 
made Hable. It would be perhaps invidious, and might tend 
to prejudging on points which ought very seriously and dis- 
passionately to be examined, if I were here to point out in the 
several instances of the actual execution of this assumed power, 
how almost every executive power of the crown lodged in its 
governor, is, where money is necessary, thus exercised by the 
assembly and its commissioners. . . , 



CPiAPTER V 

THE UNION OF THE AMERICAN COLONIES 

The coercive acts of 1774 furnished the occasion for the First Conti- 
nental Congress. The suggestion of an annual congress came from the 
Burgesses of Virginia. The House of Representatives of Massachusetts 
gave definiteness to the project by naming a time and place of meeting. 
The two notable acts of the First Congress are the Declaration of Rights 
and Grievances and the Association. The latter is the more important 
document inasmuch as it points to the assumption of revolutionary 
authority by the Congress. The rapid njarch of events forced the Second 
Continental Congress to assume powers far in excess of the instructions 
given to the delegates. The resolutions adopted in June, 1775, indicate 
that the Congress was already acting as a de facto government. 

II. Credentials oj the Delegates from Massachusetts to the First 
Continental Congress} 

In the House of Representatives, 

June 17 th, 1774. 

This house having duly considered, and being deeply- 
affected with the unhappy differences which have long sub- 
sisted and are encreasing between Great Britain and the Amer- 
ican Colonies, do resolve, that a meeting of Committees from 
the several Colonies on this Continent is highly expedient and 
necessary, to consult upon the present state of the Colonies, 
and the miseries to which they are and must be reduced by the 
operation of certain acts of Parliament respecting America, 
and to deliberate and determine upon wise and proper measures, 
to be by them recommended to all the Colonies, for the 
recovery and establishment of their just rights & liberties, 
civil & religious, and the restoration of union & harmony be- 
tween Great Britain and the Colonies, most ardently desired 
by all good men. Therefore, Resolved, That the Hon.'''^ 
James Bowdoin, esq'., the Hon"^-'^ Thomas Gushing, esq^, Mr. 
Samuel Adams, John Adams, & Robert Treat Paine, esq''.^, be, 

^ Journals of the Continental Congress (Ford ed.), i, 15-16. 



UNION OF THE AMERICAN COLONIES 35 

and they are hereby appointed a Committee on the part of 
this province, for the purposes aforesaid, any three of whom 
to be a quorum, to meet such committees or delegates from the 
other Colonies as have been or may be appointed, either by 
their respective houses of Burgesses, or representatives, or by 
convention, or by the committees of correspondence appointed 
by the respective houses of Assembly, in the city of Philadel- 
phia, or any other place that shall be judged most suitable by 
the Committee, on the first day of September next; & that the 
Speaker of the House be directed, in a letter to the speakers of 
the house of Burgesses or representatives in the several Colo- 
nies, to inform them of the substance of these Resolves. 
Attested : ^^ '- 

Samuel Adams, Clerk, 

12. The Association} 

We, his majesty's most loyal subjects, the delegates of 
the several colonies of New-Hampshire, Massachusetts-Bay, 
Rhode-Island, Connecticut, New- York, New-Jerse}^, Pennsyl- 
vania, the three lower counties of Newcastle, Kent and Sussex 
on Delaware, Maryland, Virginia, North-Carolina, and South- 
Carolina, deputed to represent them in a continental Congress, 
held in the city of Philadelphia, on the fifth day of September, 
1774, avowing our allegiance to his majesty, our affection and 
regard for our fellow-subjects in Great Britain and elsewhere, 
affected with the deepest anxiety, and most alarming appre- 
hensions, at those grievances and distresses, with which his 
Majesty's American subjects are oppressed ; and having taken 
under our most serious deliberation, the state of the whole 
continent, find, that the present unhappy situation of our 
affairs is occasioned by a ruinous system of colony administra- 
tion, adopted by the British ministry about the year 1763, evi- 
dently calculated for inslaving these colonies, and, with them, 
the British Empire. In prosecution of which system, various 
acts of parhament have been passed, for raising a revenue in 

^ October 20, 1774. Journals of the Continental Congress (Ford ed.), i, 
7S-80. 



36 FOUNDATIONS OF AMERICAN POLITY 

America, for depriving the American subjects, in many in- 
stances, of the constitutional trial by jury, exposing their lives 
to danger, by directing a new and illegal trial beyond the seas, 
for crimes alleged to have been committed in America : and in 
prosecution of the same system, several late, cruel and oppres- 
sive acts have been passed, respecting the town of Boston and 
the Massachusetts-Bay, and also an act for extending the 
province of Quebec, so as to border on the western frontiers of 
these colonies, establishing an arbitrary government therein, 
and discouraging the settlement of British subjects in that 
wide extended country; thus, by the influence of civil princi- 
ples and ancient prejudices, to dispose the inhabitants to act 
with hostility against the free Protestant colonies, whenever a 
wicked ministry shall chuse so to direct them. 

To obtain redress of these grievances, which threaten destruc- 
tion to the lives, liberty, and property of his majesty's subjects, 
in North- America, we are of opinion, that a non-importation, 
non-consumption, and non-exportation agreement, faithfully 
adhered to, will prove the most speedy, effectual, and peace- 
able measure: and, therefore, we do, for ourselves, and the 
inhabitants of the several colonies, whom we represent, firmly 
agree and associate, under the sacred ties of virtue, honour and 
love of our country, as follows: 

1. That from and after the first day of December next, we 
will not import, into British America, from Great-Britain or 
Ireland, any goods, wares, or merchandize whatsoever, or from 
any other place, any such goods, wares, or merchandize, as 
shall have been exported from Great-Britain or Ireland; nor 
will we, after that day, import any East-India tea from any part 
of the world; nor any molasses, syrups, paneles, coffee, or pi- 
mento, from the British plantations or from Dominica; nor 
wines from Madeira, or the Western Islands; nor foreign 
indigo. 

2. We will neither import nor purchase, any slave imported 
after the first day of December next; after which time, we 
will wholly discontinue the slave trade, and will neither be 
concerned in it ourselves, not will we hire our vessels, nor sell 



UNION OF THE AMERICAN COLONIES 37 

our commodities or manufactures to those who are concerned 
in it. 

3. As a non-consumption agreement, strictly adhered to, 
will be an effectual security for the observation of the non- 
importation, we, as above, solemnly agree and associate, that 
from this day, we will not purchase or use any tea, imported on 
account of the East-India company, or any on which a duty 
hath been or shall be paid ; and from and after the first day of 
March next, we will not purchase or use any East-India tea 
whatever; nor will we, nor shall any person for or under us, 
purchase or use any of those goods, wares, or merchandize, 
we have agreed not to import, which we shall know, or have 
cause to suspect, were imported after the first day of Decem- 
ber, except such as come under the rules and directions of the 
tenth article hereafter mentioned. 

4. The earnest desire we have not to injure our fellow- 
subjects in Great-Britain, Ireland, or the West-Indies, induces 
us to suspend a non-exportation, until the tenth day of Sep- 
tember, 1775; at which time, if the said acts and parts of acts 
of the British parliament herein after mentioned, are not 
repealed, we will not directly or indirectly, export any mer- 
chandize or commodity whatsoever to Great-Britain, Ireland, 
or the West-Indies, except rice to Europe. 

5. Such as are merchants, and use the British and Irish 
trade, will give orders, as soon as possible, to their factors, 
agents and correspondents, in Great-Britain and Ireland, not to 
ship any goods to them, on any pretence whatsoever, as they 
cannot be received in America; and if any merchant, residing 
in Great-Britain or Ireland, shall directly or indirectly ship any 
goods, wares or merchandize, for America, in order to break 
the said non-importation agreement, or in any manner con- 
travene the same, on such unworthy conduct being well 
attested, it ought to be made public; and, on the same being 
so done, we will not, from henceforth, have any commercial 
connexion with such merchant. 

6. That such as are owners of vessels will give positive orders 
to their captains, or masters, not to receive on board their 



38 FOUNDATIONS OF AMERICAN POLITY 

vessels any goods prohibited by the said non-importation agree- 
ment, on pain of immediate dismission from their service. 

7. We will use our utmost endeavours to improve the breed 
of sheep, and increase their number to the greatest extent; 
and to that end, we will kill them as seldom as may be, espe- 
cially those of the most profitable kind ; nor will we export any 
to the West-Indies or elsewhere; and those of us, who are or 
may become overstocked with, or can conveniently spare any 
sheep, will dispose of them to our neighbours, especially to the 
poorer sort, on moderate terms. 

8. We will, in our several stations, encourage frugality, econ- 
omy, and industry, and promote agriculture, arts and the man- 
ufactures of this country, especially that of wool; and will dis- 
countenance and discourage every species of extravagance and 
dissipation, especially all horse-racing, and all kinds of gaming, 
cock-fighting, exhibitions of shews, plays, and other expensive 
diversions and entertainments; and on the death of any rela- 
tion or friend, none of us, or any of our families, will go into 
any further mourning-dress, than a black crape or ribbon on 
the arm or hat, for gentlemen, and a black ribbon and necklace 
for ladies, and we will discontinue the giving of gloves and 
scarves at funerals. 

9. Such as are venders of goods or merchandize will not take 
advantage of the scarcity of goods, that may be occasioned 
by this association, but will sell the same at the rates we have 
been respectively accustomed to do, for twelve months last 
past. — And if any vender of goods or merchandize shall sell 
such goods on higher terms, or shall, in any manner, or by any 
device whatsoever, violate or depart from this agreement, no 
person ought, nor will any of us deal with any such person, or 
his or her factor or agent, at any time thereafter, for any 
commodity whatever. 

10. In case any merchant, trader, or other person, shall im- 
port any goods or merchandize, after the first day of December, 
and before the first day of February next, the same ought 
forthwith, at the election of the owner, to be either re-shipped 
or delivered up to the committee of the county or town, 



UNION OF THE AMERICAN COLONIES 39 

wherein they shall be imported, to be stored at the risque of 
the importer, until the non-importation agreement shall cease, 
or be sold under the direction of the committee aforesaid; and 
in the last-mentioned case, the owner or owners of such goods 
shall be reimbursed out of the sales, the first cost and charges, 
the profit, if any, to be applied towards relieving and employ- 
ing such poor inhabitants of the town of Boston, as are immedi- 
ate sufferers by the Boston port-bill; and a particular account 
of all goods so returned, stored, or sold, to be inserted in the 
public papers; and if any goods or merchandizes shall be im- 
ported after the said first day of February, the same ought 
forthwith to be sent back again, without breaking any of the 
packages thereof. 

1 1 . That a committee be chosen in every county, city, and 
town, by those who are qualified to vote for representatives in 
the legislature, whose business it shall be attentively to observe 
the conduct of all persons touching this association; and when 
it shall be made to appear, to the satisfaction of a majority of 
any such committee, that any person within the limits of their 
appointment has violated this association, that such majority 
do forthwith cause the truth of the case to be published in the 
gazette; to the end, that all such foes to the rights of British- 
America may be publicly known, and universally contemned 
as the enemies of American liberty; and thenceforth we re- 
spectively will break off all dealings with him or her. 

12. That the committee of correspondence, in the respective 
colonies, do frequently inspect the entries of their custom- 
houses, and inform each other, from time to time, of the true 
state thereof, and of every other material circumstance that 
may occur relative to this association. 

13. That all manufactures of this country be sold at reason- 
able prices, so that no undue advantage be taken of a future 
scarcity of goods. 

14. And we do fiirther agree and resolve, that we will have 
no trade, commerce, deahngs or intercourse whatsoever, with 
any colony or province, in North-America, which shall not 
accede to, or which shall hereafter violate this association, but 



40 FOUNDATIONS OF AMERICAN POLITY 

will hold them as unworthy of the rights of freemen, and as 
inimical to the liberties of their country. 

And we do solemnly bind ourselves and our constituents, 
under the ties aforesaid, to adhere to this association, until 
such parts of the several acts of parliament, passed since the 
close of the last war, as impose or continue duties on tea, wine, 
molasses, syrups, paneles, coffee, sugar, pimento, indigo, for- 
eign paper, glass, and painters' colours, imported into America, 
and extend the powers of the admiralty courts beyond their 
ancient limits, deprive the American subject of trial by jury, 
authorize the judge's certificate to indemnify the prosecutor 
from damages, that he might otherwise be liable to, from a 
trial by his peers, require oppressive security from a claimant 
of ships or goods seized, before he shall be allowed to defend his 
property, are repealed. — And until that part of the act of the 
12. G. 3. ch. 24, entitled, " An act for the better securing his 
majesty's dock-yards, magazines, ships, ammunition, and 
stores," by which any persons charged with committing any 
of the offences therein described, in America, may be tried in 
any shire or county within the realm, is repealed — and until 
the four acts, passed the last session of parliament, viz. that 
for stopping the port and blocking up the harbour of Boston — 
that for altering the charter and government of the Massa- 
chusetts-Bay — and that which is entitled, "An act for the 
better administration of justice, &c." — and that " For ex- 
tending the limits of Quebec, &c." are repealed. And we 
recommend it to the provincial conventions, and to the com- 
mittees in the respective colonies, to establish such farther 
regulations as they may think proper, for carrying into execu- 
tion this association. ... 

13. Resolutions of the Second Continental Congress} 

June 3, 1775. 

Upon motion Resolved, That a committee be appointed for 
the purpose of borrowing the sum of six thousand pounds for 

^ Journals of the Continental Congress (Ford ed.) II, 79, 83-84, 89, 91. 



UNION OF THE AMERICAN COLONIES 41 

the use of America; for the repayment of which with interest, 
the Congress will make full and ample provision, and that the 
s*^ com[mittee] apply the s^ sum of money to the purchase of 
gunpowder for the use of the Continental Army. 

June 9, 1775. 

The report of the committee, on the Letter from the conven- 
tion of Massachusetts bay, being again read, Congress came to 
the following resolution : 

Resolved^ That no obedience being due to the Act of parlia- 
ment for altering the charter of the Colony of Massachusetts 
bay, nor to a Governor, or a Heutenant-Governor, who will not 
observe the directions of, but endeavour to subvert that char- 
ter, the govf. and lieutenant-go v 5 of that Colony are to be 
considered as absent, and these offices vacant; and as there is 
no council there, and the inconveniences, arising from the sus- 
pension of the powers of Government, are intollerable, espe- 
cially at a time when Gen' Gage hath actually levied war, and 
is carrying on hostilities, against his Majesty's peaceable and 
loyal subjects of that Colony; that, in order to conform, as near 
as may be, to the spirit and substance of the charter, it be 
recommended to the provincial Convention, to write letters 
to the inhabitants of the several places, which are intituled to 
representation in Assembly, requesting them to chuse such rep- 
resentatives, and that the Assembly, when chosen, do elect 
counsellors ; which assembly and council should exercise the 
powers of Government, until a Governor, of his Majesty's 
appointment, will consent to govern the colony according to its 
charter. 

June 14, 1775. 

Resolved, That six companies of expert rifflemen, be immedi- 
ately raised in Pennsylvania, two in Maryland, and two in 
Virginia; that each company consist of a captain, three lieu- 
tenants, four Serjeants, four corporals, a drummer or trump- 
eter, and sixty-eight privates. 

That each company, as soon as compleated, shall march and 



42 FOUNDATIONS OF AMERICAN POLITY 

join the army near Boston, to be there employed as Hght 
infantry, under the command of the chief Officer in that army. 

June 15, 1775. 

Resolved, That a General be appointed to command all the 
continental forces, raised, or to be raised, for the defence of 
American liberty. 

That five hundred dollars, per month, be allowed for his pay 
and expences. 

The Congress then proceeded to the choice of a general, 
II by ballot, || when George Washington, Esq. was unanimously 
elected. 



CHAPTER VI 

POLITICAL DOCTRINES OF THE REVOLUTIONARY ERA 

The American revolutionists borrowed their political philosophy largely 
from John Locke, who in turn was the exponent of the doctrines of the 
English Revolution of 1688. The indebtedness of the author of the Decla- 
ration of Independence to the Treatises on Government is apparent to 
everyone who has compared that document with Locke's chapter on "the 
Dissolution of Governments." The bill of rights prefixed to the Mass- 
achusetts Constitution of 1780 is perhaps the most complete statement of 
the fundamental civil and political rights to which men of the revolution- 
ary era laid claim. 

14. John Locke on the Dissolution of Governments} 

The reason why men enter into society is the preservation 
of their property; and the end while they choose and authorize 
a legislative is that there may be laws made, and rules set, as 
guards and fences to the properties of all the society, to limit 
the power, and moderate the dominion of every part and mem- 
ber of the society. For since it can never be supposed to be the 
will of the society that the legislative should have a power to 
destroy that which everyone designs to secure by entering into 
society, and for which the people submitted themselves to 
legislators of their own making; whenever the legislators 
endeavour to take away and destroy the property of the 
people, or to reduce them to slavery under arbitrary power, 
they put themselves into a state of war with the people, who 
are thereupon absolved from any farther obedience, and are 
left to the common refuge which God hath provided for all men 
against force and violence. Whensoever, therefore, the legis- 
lative shall transgress this fundamental rule of society, and 
either by ambition, fear, folly, or corruption, endeavour to 
grasp themselves, or put into the hands of any other, an abso- 
lute power over the lives, liberties, and estates of the people; 

^ John Locke, Two Treatises of Government (Morley's Universal Library) , 
§§ 222, 225. 



44 FOUNDATIONS OF AMERICAN POLITY 

by this breach of trust they forfeit the power the people had 
put into their hands for quite contrary ends, and it devolves 
to the people, who have a right to resume their original liberty, 
and by the estabUshment of a new legislative (such as they 
shall think fit), provide for their own safety and security, 
which is the end for which they are in society. What I have 
said here concerning the legislative in general holds true also 
concerning the supreme executor, who having a double trust 
put in him, both to have a part in the legislative and the 
supreme execution of the law, acts against both, when he 
goes about to set up his own arbitrary will as the law of the 
society. . . . 

Such revolutions happen not upon every Httle mismanage- 
ment in pubhc affairs. Great mistakes in the ruling part, many 
wrong and inconvenient laws, and all the slips of human frailty 
will be borne by the people without mutiny or murmur. But 
if a long train of abuses, prevarications, and artifices, all tend- 
ing the same way, make the design visible to the people, and 
they cannot but feel what they lie under, and see whither they 
are going, it is not to be wondered that they should then rouse 
themselves, and endeavour to put the rule into such hands 
which may secure to them the ends for which government was 
at first erected, and without which, ancient names and specious 
forms are so far from being better, that they are much worse 
than the state of Nature or pure anarchy; the inconveniences 
being all as great and as near, but the remedy farther off and 
more difiicult. 

15, The Revolution in New Hampshire} 

In Congress at Exeter, 

January 5, 1776. 

Voted, That this Congress take up Civil Government for 
this colony in manner and form following, viz. 

We, the members of the Congress of New Hampshire, chosen 
and appointed by the free suffrages of the people of said colony, 
and authorized and empowered by them to meet together, and 

1 Thorpe, Federal and State Constitutions, iv, 2451-53. 



POLITICAL DOCTRINES OF THE ERA 45 

use such means and pursue such measures as we should judge 
best for the public good; and in particular to estabhsh some 
form of government, provided that measure should be recom- 
mended by the Continental Congress: And a recommendation 
to that purpose having been transmitted to us from the said 
Congress: Have taken into our serious consideration the un- 
happy circumstances, into which this colony is involved by 
means of many grievous and oppressive acts of the British 
Parliament, depriving us of our natural and constitutional 
rights and privileges; to enforce obedience to which acts a 
powerful fleet and army have been sent to this country by the 
ministry of Great Britain, who have exercised a wanton and 
cruel abuse of their power, in destroying the lives and proper- 
ties of the colonists in many places with fire and sword, taking 
the ships and lading from many of the honest and industrious 
inhabitants of this colony employed in commerce, agreeable 
to the laws and customs a long time used here. 

The sudden and abrupt departure of his Excellency John 
Wentworth, Esq., our late Governor, and several of the Council, 
leaving us destitute of legislation, and no executive courts being 
open to punish criminal offenders ; whereby the Hves and prop- 
erties of the honest people of this colony are liable to the machi- 
nations and evil designs of wicked men, Therefore, for the 
preservation of peace and good order, and for the security of 
the hves and properties of the inhabitants of this colony, we 
conceive ourselves reduced to the necessity of establishing A 
Form of Government to continue during the present unhappy 
and unnatural contest with Great Britain; Protesting and De- 
claring that we neaver sought to throw off our dependence 
upon Great Britain, but felt ourselves happy under her pro- 
tection, while we could enjoy our constitutional rights and 
privileges. And that we shall rejoice if such a reconciliation 
between us and our parent State can be effected as shall be 
approved by the Continental Congress, in whose prudence and 
wisdom we confide. 

Accordingly pursuant to the trust reposed in us, We do 
Resolve, that this Congress assume the name, power and 



46 FOUNDATIONS OF AMERICAN POLITY 

authority of a house of Representatives or Assembly for the 
Colony of New-Hampshire. . . . 

1 6. The Declaration of Independence} 

When in the Course of human events, it becomes necessary 
for one people to dissolve the political bands which have con- 
nected them with another, and to assume among the Powers of 
the earth, the separate and equal station to which the Laws of 
Nature and of Nature's God entitle them, a decent respect to 
the opinions of mankind requires that they should declare the 
causes which impel them to the separation. 

We hold these truths to be self-evident, that all men are 
created equal, that they are endowed by their Creator with 
certain unalienable Rights, that among these are Life, Liberty 
and the pursuit of Happiness. That to secure these rights, 
Governments are instituted among Men, deriving their just 
powers from the consent of the governed, That whenever any 
Form of Government becomes destructive of these ends, it is 
the Right of the People to alter or to abolish it, and to institute 
new Government, laying its foundation on such principles and 
organizing its powers in such form, as to them shall seem most 
likely to effect their Safety and Happiness. Prudence, indeed, 
will dictate that Governments long estabHshed should not be 
changed for Hght and transient causes; and accordingly all 
experience hath shown, that mankind are more disposed to 
suffer, while evils are sufferable, than to right themselves by 
abolishing the forms to which they are accustomed. But when 
a long train of abuses and usurpations, pursuing invariably the 
same Object evinces a design to reduce them under absolute 
Despotism, it is their right, it is their duty, to throw off such 
Government, and to provide new Guards for their future 
security. — Such has been the patient sufferanqe of these 
Colonies; and such is now the necessity which constrains them 
to alter their former Systems of Government. The history of 
the present King of Great Britain is a history of repeated in- 
juries and usurpations, all having in direct object the estab- 
^ Revised Statutes of the United States (1878), 3-5. 



POLITICAL DOCTRINES OF THE ERA 47 

lishment of an absolute Tyranny over these States. To prove 
this, let Facts be submitted to a candid world 

In every stage of these Oppressions We have Petitioned for 
Redress in the most humble terms : Our repeated Petitions have 
been answered only by repeated injury. A Prince, whose char- 
acter is thus marked by every act which may define a Tyrant, 
is unfit to be the ruler of a free People. 

Nor have We been wanting in attention to our British 
brethren. We have warned them from time to time of attempts 
by their legislature to extend an unwarrantable jurisdiction 
over us. We have reminded them of the circumstances of our 
emigration and settlement here. We have appealed to their 
native justice and magnanimity, and we have conjured them 
by the ties of our common kindred to disavow these usurpa- 
tions, which would inevitably interrupt our connections and 
correspondence. They too have been deaf to the voice of jus- 
tice and of consanguinity. We must, therefore, acquiesce in the 
necessity, which denounces our Separation, and hold them, as 
we hold the rest of mankind, Enemies in War, in Peace Friends. 

We, therefore, the Representatives of the united States of 
America, in General Congress, Assembled, appealing to the 
Supreme Judge of the world for the rectitude of our intentions, 
do, in the Name, and by Authority of the good People of these 
Colonies, solemnly publish and declare, That these United 
Colonies are, and of Right ought to be Free and Independent 
States ; that they are Absolved from all Allegiance to the Brit- 
ish Crown, and that all political connection between them and 
the State of Great Britain, is and ought to be totally dissolved; 
and that as Free and Independent States, they have full Power 
to levy War, conclude Peace, contract AlHances, estabUsh Com- 
merce, and to do all other Acts and Things which Independent 
States may of right do. And for the support of this Declara- 
tion, with a firm reliance on the Protection of Divine Provi- 
dence, we mutually pledge to each other our Lives, our For- 
tunes and our sacred Honor. 



48 FOUNDATIONS OF AMERICAN POLJTY 

17. Massachusetts Declaration of Rights — lySo} 

The end of the institution, maintenance, and administration 
of government, is to secure the existence of the body politic, to 
protect it, and to furnish the individuals who compose it with 
the power of enjoying in safety and tranquillity their natural 
rights, and the blessings of life: and whenever these great 
objects are not obtained the people have a right to alter the 
government, and to take measures necessary for their safety, 
prosperity, and happiness. 

The body poHtic is formed by a voluntary association of indi- 
viduals: it is a social compact, by which the whole people cove- 
nants with each citizen, and each citizen with the whole people, 
that all shall be governed by certain laws for the common good. 
It is the duty of the people, therefore, in framing a constitution 
of government, to provide for an equitable mode of making 
laws, as well as for an impartial interpretation and a faithful 
execution of them; that every man may, at all times, find his 
security in them. 

We, therefore, the people of Massachusetts, acknowledging, 
with grateful hearts, the goodness of the great Legislator of 
the universe, in affording us, in the course of His providence, 
an opportunity, deliberately and peaceably, without fraud, 
violence, or surprise, of entering into an original, explicit, and 
solemn compact with each other; and of forming a new consti- 
tution of civil government, for ourselves and posterity; and 
devoutly imploring His direction in so interesting a design, do 
agree upon, ordain, and establish, the following Declaration of 
Rights, and Frame of Government, as the Constitution of the 
Commonwealth of Massachusetts. 

Article I. All men are born free and equal, and have certain 
natural, essential, and unalienable rights; among which may 
be reckoned the right of enjoying and defending their lives and 
liberties; that of acquiring, possessing, and protecting property; 
in fine, that of seeking and obtaining their safety and happiness. 

II. It is the right as well as the duty of all men in society, 
^ Thorpe, Federal and State Constitutions, in, 1888-93. 



POLITICAL DOCTRINES OF THE ERA 49 

publicly, and at stated seasons, to worship the Supreme Being, 
the great Creator and Preserver of the universe. And no sub- 
ject shall be hurt, molested, or restrained, in his person, lib- 
erty, or estate, for worshipping God in the manner and season 
most agreeable to the dictates of his own conscience ; or for his 
religious profession of sentiments; provided he doth not dis- 
turb the public peace, or obstruct others in their religious 
worship. 

III. As the happiness of a people, and the good order and 
preservation of civil government, essentially depend upon 
piety, religion and morality; and as these cannot be generally 
diffused through a community but by the institution of the 
public worship of God, and of public instructions in piety, 
religion, and morality: Therefore, to promote their happiness, 
and to secure the good order and preservation of their govern- 
ment, the people of this commonwealth have a right to invest 
their legislature with power to authorize and require, and the 
legislature shall, from time to time, authorize and require, the 
several towns, parishes, precincts, and other bodies politic, or 
rehgious societies, to make suitable provision, at their own 
expense, for the institution of the public worship of God, and 
for the support and maintenance of public Protestant teachers 
of piety, reUgion, and morality, in all cases where such provis- 
ion shall not be made voluntarily. 

And the people of this commonwealth have also a right to, 
and do, invest their legislature with authority to enjoin upon 
all the subjects an attendance upon the instructions of the 
public teachers aforesaid, at stated times and seasons, if there 
be any on whose instructions they can conscientiously and 
conveniently attend. 

Provided, notwithstanding, that the several towns, parishes, 
precincts, and other bodies politic, or rehgious societies, shall, 
at all times, have the exclusive right of electing their pubHc 
teachers, and of contracting with them for their support and 
maintenance. 

And all moneys paid by the subject to the support of pubhc 
worship, and of the pubHc teachers aforesaid, shall, if he 



50 FOUNDATIONS OF AMERICAN POLITY 

require it, be uniformly applied to the support of the public 
teacher or teachers of his own religious sect or denomination, 
provided there be any on whose instructions he attends; other- 
wise it may be paid towards the support of the teacher or 
teachers of the parish or precinct in which the said moneys are 
raised. 

And every denomination of Christians, demeaning them- 
selves peaceably, and as good subjects of the commonwealth, 
shall be equally under the protection of the law: and no sub- 
ordination of any one sect or denomination to another shall 
ever be established by law. 

IV. The people of this commonwealth have the sole and 
exclusive right of governing themselves, as a free, sovereign, 
and independent state; and do, and forever hereafter shall, 
exercise and enjoy every power, jurisdiction, and right, which 
is not, or may not hereafter be, by them expressly delegated to 
the United States of America, in Congress assembled. 

V. All power residing originally in the people, and being 
derived from them, the several magistrates and officers of 
government, vested with authority, whether legislative, execu- 
tive, or judicial, are their substitutes and agents, and are at all 
times accountable to them. 

VI. No man, nor corporation, or association of men, have 
any other title to obtain advantages, or particular and exclu- 
sive privileges, distinct from those of the community, than 
what arises from the consideration of services rendered to the 
public; and this title being in nature neither hereditary, nor 
transmissible to children, or descendants, or relations by blood, 
the idea of a man born a magistrate, law-giver, or judge, is 
absurd and unnatural. 

VII. Government is instituted for the common good; for 
the protection, safety, prosperity, and happiness of the people; 
and not for the profit, honor, or private interest of any one man, 
family, or class of men : Therefore the people alone have an in- 
contestible unalienable, and indefeasible right to institute gov- 
ernment; and to reform, alter, or totally change the same, when 
their protection, safety, prosperity, and happiness require it. 



POLITICAL DOCTRINES OF THE ERA 51 

VIII. In order to prevent those who are vested with author- 
ity from becoming oppressors, the people have a right, at such 
periods and in such manner as they shall establish by their 
frame of government, to cause their public officers to return to 
private Hf e ; and to fill up vacant places by certain and regular 
elections and appointments. 

IX. All elections ought to be free ; and all the inhabitants of 
this commonwealth, having such qualifications as they shall 
estabhsh by their frame of government, have an equal right 
to elect officers, and to be elected, for public employments. 

X. Each individual of the society has a right to be protected 
by it in the enjoyment of his life, liberty, and property, accord- 
ing to standing laws. He is obliged, consequently, to contrib- 
ute his share to the expense of this protection; to give his 
personal service, or an equivalent, when necessary: but no 
part of the property of any individual can, with justice, be 
taken from him, or applied to public uses, without his own 
consent, or that of the representative body of the people. In 
fine, the people of this commonwealth, are not controllable by 
any other laws than those to which their constitutional repre- 
sentative body have given their consent. And whenever the 
public exigencies require that the property of any individual 
should be appropriated to public uses, he shall receive a reason- 
able compensation therefor. 

XL Every subject of the commonwealth ought to find a 
certain remedy, by having recourse to the laws for all injuries 
or wrongs which he may receive in his person, property, or 
character. He ought to obtain right and justice freely, and 
without being obliged to purchase it; completely, and without 
any denial; promptly, and without delay; conformably to the 
laws. 

XII. No subject shall be held to answer for any crimes or 
offence, until the same is fully and plainly, substantially, and 
formally, described to him; or be compelled to accuse, or fur- 
nish evidence against himself. And every subject shall have a 
right to produce all proofs that may be favorable to him; to 
meet the witnesses against him face to face, and to be fully 



52 FOUNDATIONS OF AMERICAN POLITY 

heard in his defence by himself, or his counsel, at his election. 
And no subject shall be arrested, imprisoned, despoiled, or 
deprived of his property, immunities, or privileges, put out of 
the protection of the law, exiled, or deprived of his life, liberty, 
or estate, but by the judgment of his peers, or the law of the 
land. 

And the legislature shall not make any law that shall sub- 
ject any person to a capital or infamous punishment, excepting 
for the government of the army and navy, without trial by 
jury. 

XIII. In criminal prosecutions, the verification of facts, in 
the vicinity where they happen, is one of the greatest securities 
of the Hfe, liberty, and property of the citizen. 

XIV. Every subject has a right to be secure from all unrea- 
sonable searches, and seizures, of his person, his houses, his 
papers, and all his possessions. All warrants, therefore, are 
contrary to this right, if the cause or foundation of them be not 
previously supported by oath or affirmation, and if the order 
in the warrant to a civil officer, to make search in suspected 
places, or to arrest one or more suspected persons, or to seize 
their property, be not accompanied with a special designation 
of the persons or objects of search, arrest, or seizure; and no 
warrant ought to be issued but in cases, and with the formali- 
ties prescribed by the laws. 

XV. In all controversies concerning property, and in all 
suits between two or more persons, except in cases in which it 
has heretofore been otherways used and practised, the parties 
have a right to a trial by jury; and this method of procedure 
shall be held sacred, unless, in causes arising on the high seas, 
and such as relate to mariners' wages, the legislature shall here- 
after find it necessary to alter it. 

XVI. The liberty of the press is essential to the security 
of freedom in a state it ought not, therefore, to be restricted in 
this commonwealth. 

XVII. The people have a right to keep and to bear arms for 
the common defence. And as, in time of peace, armies are 
dangerous to liberty, they ought not to be maintained without 



POLITICAL DOCTRINES OF THE ERA 53 

the consent of the legislature; and the military power shall 
always be held in an exact subordination to the civil authority, 
and be governed by it. 

XVIII. A frequent recurrence to the fundamental principles 
of the constitution, and a constant adherence to those of piety, 
justice, moderation, temperance, industry, and frugality, are 
absolutely necessary to preserve the advantages of liberty, and 
to maintain a free government. The people ought, conse- 
quently, to have a particular attention to all those principles, 
in the choice of their officers and representatives: and they 
have a right to require of their lawgivers and magistrates an 
exact and constant observance of them, in the formation and 
execution of the laws necessary for the good administration of 
the commonwealth. 

XIX. The people have a right, in an orderly and peaceable 
manner, to assemble to consult upon the common good; give 
instructions to their representatives, and to request of the 
legislative body, by the way of addresses, petitions, or remon- 
strances, redress of the wrongs done them, and of the griev- 
ances they suffer. 

XX. The power of suspending the laws, or the execution of 
the laws, ought never to be exercised but by the legislature, or 
by authority derived from it, to be exercised in such particular 
cases only as the legislature shall expressly provide for. 

XXL The freedom of deliberation, speech, and debate, in 
either house of the legislature, is so essential to the rights of the 
people, that it cannot be the foundation of any accusation or 
prosecution, action or complaint, in any other court or place 
whatsoever. 

XXII. The legislature ought frequently to assemble for the 
redress of grievances, for correcting, strengthening, and con- 
firming the laws, and for making new laws, as the common good 
may require. 

XXIII. No subsidy, charge, tax, impost, or duties ought to 
be established, fixed, laid, or levied, under any pretext whatso- 
ever, without the consent of the people or their representatives 
in the legislature. 



54 FOUNDATIONS OF AMERICAN POLITY 

XXIV. Laws made to punish for actions done before the 
existence of such laws, and which have not been declared crimes 
by preceding laws, are unjust, oppressive, and inconsistent with 
the fundamental principles of a free government. 

XXV. No subject ought, in any case, or in any time, to be 
declared guilty of treason or felony by the legislature. 

XXVI. No magistrate or court of law shall demand exces- 
sive bail or sureties, impose excessive fines, or inflict cruel or 
unusual punishments. 

XXVII. In time of peace, no soldier ought to be quartered 
in any house without the consent of the owner; and in time of 
war, such quarters ought not to be made but by the civil mag- 
istrate, in a manner ordained by the legislature. 

XXVIII. No person can in any case be subject to law- 
martial, or to any penalties or pains, by virtue of that law, 
except those employed in the army or navy, and except the 
miHtia in actual service, but by authority of the legislature. 

XXIX. It is essential to the preservation of the rights of 
every individual, his life, liberty, property, and character, that 
there be an impartial interpretation of the laws, and adminis- 
tration of justice. It is the right of every citizen to be tried by 
judges as free, impartial, and independent as the lot of human- 
ity will admit. It is, therefore, not only the best policy, but for 
the security of the rights of the people, and of every citizen, 
that the judges of the supreme judicial court should hold their 
offices as long as they behave themselves well; and that they 
should have honorable salaries ascertained and established by 
standing laws. 

XXX. In the government of this commonwealth, the legis- 
lative department shall never exercise the executive and judi- 
cial powers, or either of them : the executive shall never exercise 
the legislative and judicial powers, or either of them : the judi- 
cial shall never exercise the legislative and executive powers, 
or either of them : to the end it may be a government of laws 
and not of men. 



PART TWO. THE FORMATION OF STATE 
AND FEDERAL CONSTITUTIONS 

CHAPTER VII 

PRINCIPLES OF REPRESENTATIVE GOVERNMENT 

The constructive statesmen of the revolutionary era were not believers 
in pure democracy. In every colony there had been a governing class 
more or less clearly recognized. And even after the Revolution had 
brought new and radical leaders to the fore, the common assumption was 
that the masses would still be governed by the upper classes. Although 
the following selections from the Federalist refer to the new Federal 
Constitution, they contain a fair statement of the fundamental principles 
upon which all constitutions of this great constitution-making age were 
drafted. 

i8. Distinction between Democracies and Republics.^ 

From this view of the subject it may be concluded that a 
pure democracy, by which I mean a society consisting of a 
small number of citizens, who assemble and administer the 
government in person, can admit of no cure for the mischiefs of 
faction. A common passion or interest will, in almost every 
case, be felt by a majority of the whole; a communication and 
concert result from the form of government itself; and there 
is nothing to check the inducements to sacrifice the weaker 
party or an obnoxious individual. Hence it is that such demo- 
cracies have ever been spectacles of turbulence and contention ; 
have ever been found incompatible with personal security or 
the rights of property; and have in general been as short in 
their lives as they have been violent in their deaths. Theoretic 
politicians, who have patronized this species of government, 
have erroneously supposed that by reducing mankind to a 
perfect equality in their political rights, they would, at the 
same time, be perfectly equalized and assimilated in their 
possessions, their opinions, and their passions. 
^ Federalist (Ford ed.), No. lo passim. 



56 THE F0RA4ATI0N OF CONSTITUTIONS 

A republic, by which I mean a government in which the 
scheme of representation takes place, opens a different prospect, 
and promises the cure for which we are seeking. Let us exam- 
ine the points in which it varies from pure democracy, and we 
shall comprehend both the nature of the cure and the efficacy 
which it must derive from the Union. 

JThe two great points of difference between a democracy and 
a republic are: first, the delegation of the government, in the 
latter, to a small number of citizens elected by the rest; sec- 
ondly, the greater number of citizens, and greater sphere of 
country, over which the latter may be extended. 

The effect of the first difference is, on the one hand, to refine 
and enlarge the public views, by passing them through the 
medium of a chosen body of citizens, whose wisdom may best 
discern the true interest of their country, and whose patriotism 
and love of justice will be least likely to sacrifice it to temporary 
or partial considerations. . . . 

19. The Nature of Representation} 

The idea of an actual representation of all classes of the 
people by persons of each class is altogether visionary. Unless 
it were expressly provided in the Constitution that each differ- 
ent occupation should send one or more members, the thing 
would never take place in practice. "^Mechanics and manufac- 
turers will always be inclined, with few exceptions, to give their 
votes to merchants in preference to persons of their own pro- 
fessions or trades. Those discerning citizens are well aware 
that the mechanic and manufacturing arts furnish the materi- 
als of mercantile enterprise and industry. Many of them, in- 
deed, are immediately connected with the operations of com- 
merce. They know that the merchant is their natural patron 
and friend; and they are aware that, however great the confi- 
dence they may justly feel in their own good sense, their inter- 
ests can be more effectually promoted by the merchant than 
by themselves. They are sensible that their habits in life have 
not been such as to give them those acquired endowments 
^ Federalist (Ford ed.), No. 35 and No. 36 passim. 



REPRESENTATIVE GOVERNMENT 57 

without which, in a deliberative assembly, the greatest natural 
abilities are for the most part useless; and that the influence 
and weight and superior acquirements of the merchants render 
them more equal to a contest with any spirit which might 
happen to infuse itself into the public councils, unfriendly to 
the manufacturing and trading interests. These considerations, 
and many others that might be mentioned, prove, and experi- 
ence confirms it, that artisans and manufacturers will com- 
monly be disposed to bestow their votes upon merchants and 
those whom they recommend. We must therefore consider 
merchants as the natural representatives of all these classes of 
the community. 

With regard to the learned professions little need be observed ; 
they truly form no distinct interest in society, and, according 
to their situation and talents, will be indiscriminately the 
objects of the confidence and choice of each other, and of other 
parts of the community. 

Nothing remains but the landed interest; and this, in a 
political view, and particularly in relation to taxes, I take to be 
perfectly united, from the wealthiest landlord down to the 
poorest tenant. No tax can be laid on land which will not 
affect the proprietor of millions of acres as well as the pro- 
prietor of a single acre. Every landholder will therefore have 
a common interest to keep the taxes on land as low as possible ; 
and common interest may always be reckoned upon as the 
surest bond of sympathy. But if we even could suppose a dis- 
tinction of interest between the opulent landholder and the 
middling farmer, what reason is there to conclude that the first 
would stand a better chance of being deputed to the national 
legislature than the last? If we take fact as our guide, and look 
into our own Senate and Assembly,^ we shall find that moderate 
proprietors of land prevail in both; nor is this less the case in 
the Senate, which consists of a smaller number, than in the 
Assembly, which is composed of a greater number. Where the 
qualifications of the electors are the same, whether they have 
to choose a small or a large number, their votes will fall upon 
^ The Senate and Assembly of New York. 



58 THE FORMATION OF CONSTITUTIONS 

those in whom they have the most confidence, whether these 
happen to be men of large fortunes, or of moderate property, 
or of no property at all. 

It is said to be necessary that all classes of citizens should 
have some of their own number in the representative body in 
order that their feelings and interests may be the better under- 
stood and attended to. But we have seen that this will never 
happen under any arrangement that leaves the votes of the 
people free. Where this is the case, the representative body, 
with too few exceptions to have any influence on the spirit of 
the government, will be composed of landholders, merchants, 
and men of the learned professions. ... 

We have seen that the result of the observations to which 
the foregoing number has been principally devoted is that 
from the natural operation of the different interests and views 
of the various classes of the community, whether the represen- 
tation of the people be more or less numerous, it will consist 
almost entirely of proprietors of land, of merchants, and of 
members of the learned professions, who will truly represent 
all those different interests and views. If it should be objected 
that we have seen other descriptions of men in the local legis- 
latures, I answer that it is admitted there are exceptions to the 
rule, but not in sufficient number to influence the general com- 
plexion or character of the government. There are strong 
minds in every walk of life that will rise superior to the disad- 
vantages of situation, and will command the tribute due to 
their merit, not only from the classes to which they particu- 
larly belong, but from the society in general.' The door ought 
to be equally open to all; and I trust, for the credit of human 
nature that we shall see examples of such vigorous plants 
flourishing in the soil of federal as well as of State legislation ; 
but occasional instances of this sort will not render the reason- 
ing founded upon the general course of things less conclu- 
sive. . . . 



REPRESENTATIVE GOVERNMENT 59 

20. The Doctrine of the Separation of Powers} 

The oracle who is always consulted and cited on this subject 
is the celebrated Montesquieu. If he be not the author of this 
invaluable precept in the science of poHtics, he has the merit 
at least of displaying and recommending it most effectually 
to the attention of mankind. Let us endeavor, in the first 
place, to ascertain his meaning on this point. . . . 

On the slightest view of the British Constitution, we must 
perceive that the legislative, executive, and judiciary depart- 
ments are by no means totally separate and distinct from each 
other. The executive magistrate forms an integral part of 
the legislative authority. He alone has the prerogative of 
making treaties with foreign sovereigns, which, when made, 
have, under certain limitations, the force of legislative acts. 
All the members of the judiciary department are appointed by 
him, can be removed by him on the address of the two Houses 
of Parliament, and form, when he pleases to consult them, one 
of his constitutional councils. One branch of the legislative 
department forms also a great constitutional council to the 
executive chief, as, on another hand, it is the sole depositary 
of judicial power in cases of impeachment, and is invested with 
the supreme appellate jurisdiction in all other cases. The 
judges, again, are so far connected with the legislative depart- 
ment as often to attend and participate in its deliberations, 
though not admitted to a legislative vote. 

From these facts, by which Montesquieu was guided, it may 
clearly be inferred that, in saying "There can be no liberty 
where the legislative and executive powers are united in the 
same person, or body of magistrates," or, "if the power of 
judging be not separated from the legislative and executive 
powers," he did not mean that these departments ought to 
have no partial agency in, or no control over, the acts of each 
other. His meaning, as his own words import, and still more 
conclusively as illustrated by the example in his eye, can 
amount to no more than this, that where the whole power of 
1 I^ederalist (Ford ed.), No. 47 passim. 



6o THE FORMATION OF CONSTITUTIONS 

one department is exercised by the same hands which possess 
the whole power of another department, the fundamental prin- 
ciples of a free constitution are subverted. This would have 
been the case in the constitution examined by him, if the king, 
who is the sole executive magistrate, had possessed also the 
complete legislative power, or the supreme administration 
of justice; or if the entire legislative body had possessed the 
supreme judiciary, or the supreme executive authority. This, 
however, is not among the vices of that constitution. The 
magistrate in whom the whole executive power resides cannot 
of himself make a law, though he can put a negative on every 
law; nor administer justice in person, though he has the 
appointment of those who do administer it. The judges can 
exercise no executive prerogative, though they are shoots from 
the executive stock; nor any legislative function, though they 
may be advised with by the legislative councils. The entire 
legislature can perform no judiciary act, though by the joint 
act of two of its branches the judges may be removed from 
their offices, and though one of its branches is possessed 
of the judicial power in the last resort. The entire legisla- 
ture, again, can exercise no executive prerogative, though 
one of its branches constitutes the supreme executive ma- 
gistracy, and another, on the impeachment of a third, can 
try and condemn all the subordinate officers in the executive 
department. 

The reasons on which Montesquieu grounds his maxim are 
a further demonstration of his meaning. " When the legislative 
and executive powers are united in the same person or body," 
says he, "there can be no liberty, because apprehensions may 
arise lest the same monarch or senate should enact tyrannical 
laws to execute them in a tyrannical manner." Again: "Were 
the power of judging joined with the legislative, the life and 
liberty of the subject would be exposed to arbitrary control, 
for the judge would then be the legislator. Were it joined to the 
executive power, the judge might behave with all the violence 
of an oppressor. " Some of these reasons are more fully explained 
in other passages; but briefly stated as they are here, they suffi- 



REPRESENTATIVE GOVERNMENT 6i 

ciently establish the meaning which we have put on this cele- 
brated maxim of this celebrated author. 

2 1 . Checks and Balances. ^ 

In order to lay a due foundation for that separate and dis- 
tinct exercise of the different powers of government, which to 
a certain extent is admitted on all hands to be essential to the 
preservation of liberty, it is evident that each department 
should have a will of its own, and consequently should be so 
constituted that the members of each should have as little 
agency as possible in the appointment of the members of the 
others. Were this principle rigorously adhered to, it would 
require that all the appointments for the supreme executive, 
legislative, and judiciary magistracies should be drawn from 
the same fountain of authority, the people, through channels 
having no communication whatever with one another. Per- 
haps such a plan of constructing the several departments would 
be less difficult in practice than it may in contemplation appear. 
Some difficulties, however, and some additional expense would 
attend the execution of it. Some deviations, therefore, from 
the principle must be admitted. In the constitution of the 
judiciary department in particular, it might be inexpedient to 
insist rigorously on the principle : first, because peculiar quali- 
fications being essential in the members, the primary considera- 
tions ought to be to select that mode of choice which best 
secures these qualifications; secondly, because the permanent 
tenure by which the appointments are held in that department, 
must soon destroy all sense of dependence on the authority 
conferring them. 

It is equally evident that the members of each department 
should be as little dependent as possible on those of the others 
for the emoluments annexed to their offices. Were the execu- 
tive magistrate, or the judges, not independent of the legisla- 
ture in this particular, their independence in every other would 
be merely nominal. 

But the great security against a gradual concentration of the 
^ Federalist (Ford ed.), No. 51. 



62 THE FORMATION OF CONSTITUTIONS 

several powers in the same department consists in giving to 
those who administer each department the necessary constitu- 
tional means and personal motives to resist encroachments of 
the others. The provision for defense must in this, as in all 
other cases, be made commensurate to the danger of attack. 
Ambition must be made to counteract ambition. The interest 
of the man must be connected with the constitutional rights 
of the place. It may be a reflection on human nature that such 
devices should be necessary to control the abuses of govern- 
ment. But what is government itself, but the greatest of all 
reflections on human nature? If men were angels, no govern- 
ment would be necessary. If angels were to govern men, 
neither external nor internal controls on government would be 
necessary. In framing a government which is to be adminis- 
tered by men over men, the great difficulty lies in this: you 
must first enable the government to control the governed; and 
in the next place obHge it to control itself. A dependence on 
the people is, no doubt, the primary control on the government ; 
but experience has taught mankind the necessity of auxiliary 
precautions. 

This pohcy of supplying, by opposite and rival interests, the 
defect of better motives, might be traced through the whole 
system of human affairs, private as well as public. We see it 
particularly displayed in all the subordinate distributions of 
power, where the constant aim is to divide and arrange the 
several offices in such a manner as that each may be a check on 
the other — that the private interest of every individual may 
be a sentinel over the public rights. These inventions of pru- 
dence cannot be less requisite in the distribution of the supreme 
powers of the State. 



CHAPTER VIII 

STATE CONSTITUTIONS OF THE REVOLUTIONARY ERA 

The outbreak of the Revolution was marked in all the proprietary and 
royal provinces by the elimination of the governor. Government fell into 
the hands of the assemblies, or of irregular congresses and conventions, 
acting under no other authority than that derived from pubKc opinion. 
Nothing attests more strongly the law-abiding instinct of the provincial 
leaders than their insistent efforts to replace their revolutionary bodies 
by regularly constituted governments. On May 15, 1776, Congress 
" recommended to the respective assemblies and conventions of the United 
Colonies, where no government sufficient to the exigencies of their affairs 
has been hitherto estabhshed, to adopt such government as shall, in the 
opinion of the representatives of the people, best conduce to the happi- 
ness and safety of their constituents in particular, and America in general. ' ' 
Before the end of the war, eleven of the colonies had framed State 
Constitutions and established orderly governments. Rhode Island and 
Connecticut continued to live under their charters, which with minor 
changes served as constitutions. Importance attaches to these first State 
Constitutions not only because they exhibit the pohtical ideas of the time, 
but also because they reveal precedents and practices upon which the 
framers of the National Constitution drew in the Convention of 1787. 
While these constitutions differ in detail, they have much in common. 
In their provisions for the organization of the powers of government, 
the Constitutions of New Jersey and Virginia may be accounted typical. 
It should be noted, however, that in five States the governor was elected 
by popular vote, and that Pennsylvania and Georgia had uni-cameral 
legislatures. 

22. Transition from Colony to Commonwealth in Connecticut 

— i'/76} 

The People of this State, being by the Providence of God, free 
and independent, have the sole and exclusive Right of governing 
themselves as a free, sovereign, and independent State; and having 
from their Ancestors derived a free and excellent Constitution of 
Government whereby the Legislature depends on the free and 
annual Election of the People, they have the best Security for the 
Preservation- of their civil and religious Rights and Liberties. And 
forasmuch as the free Fruition of such Liberties and Privileges 
^ Poore, Charters and Constitutions, i, 257. 



64 THE FORA/LATION OF CONSTITUTIONS 

as Humanity, Civility, and Christianity call for, as is due to every 
Man in his Place and Proportion, without Impeachment and 
Infringement, hath ever been, and will he the Tranquility and 
Stability of Churches and Commonwealths ; and the Denial 
thereof, the Disturbance, if not the Ruin of both. 

Paragraph i . Be it enacted and declared by the Governor, and 
Council, and House of Representatives, in General Court assem- 
bled. That the ancient Form of Civil Government, contained 
in the Charter from Charles the Second, King of England, and 
adopted by the People of this State, shall be and remain the 
Civil Constitution of this State, under the sole authority of the 
People thereof, independent of any King or Prince whatever. 
And that this Republic is, and shall forever be and remain, a 
free, sovereign and independent State, by the Name of the 
STATE of CONNECTICUT. . . . 

23. Constitution of New Jersey — lyjd} 

We, the representatives of the colony of New Jersey, having 
been elected by all the counties, in the freest manner, and in 
congress assembled, have, after mature deliberations, agreed 
upon a set of charter rights and the form of a Constitution, in 
manner following, viz. 

I. That the government of this Province shall be vested in a 
Governor, Legislative Council, and General Assembly. 

II. That the Legislative Council, and General Assembly, 
shall be chosen, for the first time, on the second Tuesday in 
August next; the members whereof shall be the same in number 
and qualifications as are herein after mentioned; and shall be 
and remain vested with all the powers and authority to be 
held by any future Legislative Council and Assembly of this 
Colony, until the second Tuesday in October, which shall be 
in the year of our Lord one thousand seven hundred and 
seventy- seven. 

III. That on the second Tuesday in October yearly, and 
every year forever (with the privilege of adjourning from day 
to day as occasion may require) the counties shall severally 

^ Thorpe, Federal and State Constitutions, v, 2594-2598. 



STATE CONSTITUTIONS 65 

choose one person, to be a member of the Legislative Council 
of this Colony, who shall be, and have been, for one whole year 
next before the election, an inhabitant and freeholder in the 
county in which he is chosen, and worth at least one thousand 
pounds proclamation money, of real and personal estate, 
within the same county; that, at the same time, each county 
shall also choose three members of Assembly; provided that 
no person shall be entitled to a seat in the said Assembly unless 
he be, and have been, for one whole year next before the elec- 
tion, an inhabitant of the county he is to represent, and worth 
five hundred pounds proclamation money, in real and personal 
estate, in the same county: that on the second Tuesday next 
after the day of election, the Council and Assembly shall sepa- 
rately meet; and that the consent of both Houses shall be 
necessary to every law ; provided, that seven shall be a quorum 
of the Council, for doing business, and that no law shall pass, 
unless there be a majority of all the Representatives of each 
body personally present, and agreeing thereto. Provided 
always, that if a majority of the representatives of this Pro- 
vince, in Council and General Assembly convened, shall, at 
any time or times hereafter, judge it equitable and proper, to 
add to or diminish the number or proportion of the members 
of Assembly for any county or counties in this Colony, then, 
and in such case, the same may, on the principles of more 
equal representation, be lawfully done; anything in this 
Charter to the contrary notwithstanding: so that the whole 
number of Representatives in Assembly shall not, at any time, 
be less than thirty-nine. 

IV. That all inhabitants of this Colony, of full age, who are 
worth fifty pounds proclamation money, clear estate in the 
same, and have resided within the county in which they claim 
a vote for twelve months immediately preceding the election, 
shall be entitled to vote for Representatives in Council and 
Assembly; and also for all other public oflScers, that shall be 
elected by the people of the county at large. 

V. That the Assembly, when met, shall have power to choose 
a Speaker, and other their ofi&cers; to be judges of the qualifi- 



66 THE FORMATION OF CONSTITUTIONS 

cations and elections of their own members ; sit upon their own 
adjournments; prepare bills, to be passed into laws; and to 
empower their Speaker to convene them, whenever any extraor- 
dinary occurrence shall render it necessary. 

VI. That the Council shall also have power to prepare bills 
to pass into laws, and have other like powers as the Assembly, 
and in all respects be a free and independent branch of the 
Legislature of this Colony; save only, that they shall not pre- 
pare or alter any money bill — which shall be the privilege of 
the Assembly; that the Council shall, from time to time, be 
convened by the Governor or Vice-President, but must be 
convened, at all times, when the Assembly sits; for which pur- 
pose the Speaker of the House of Assembly shall always, imme- 
diately after an adjournment, give notice to the Governor, or 
Vice-President, of the time and place to which the House is 
adjourned. 

VII. That the Council and Assembly jointly, at their first 
nieeting after each annual election, shall, by a majority of 
votes, elect some fit person within the Colony, to be Governor 
for one year, who shall be constant President of the Council, 
and have a casting vote in their proceedings; and that the Coun- 
cil themselves shall choose a Vice-President who shall act as 
such in the absence of the Governor. 

VIII. That the Governor, or, in his absence, the Vice- 
President of the Council, shall have the supreme executive 
power, be Chancellor of the Colony, and act as captain-general 
and commander in chief of all the militia, and other mihtary 
force in this Colony; and that any three or more of the Council 
shall, at all times, be a privy-council, to consult them; and that 
the Governor be ordinary or surrogate-general. 

IX. That the Governor and Council, (seven whereof shall 
be a quorum) be the Court of Appeals, in the last resort, in all 
causes of law, as heretofore ; and that they possess the power 
of granting pardons to criminals, after condemnation, in all 
cases of treason, felony, or other offences. 

X. That captains, and all other inferior officers of the mili- 
tia, shall be chosen by the companies, in the respective 



STATE CONSTITUTIONS ^^ 

counties; but field and general officers, by the Council and 
Assembly. 

XI. That the Council and Assembly shall have power to 
make the Great Seal of this Colony, which shall be kept by the 
Governor, or, in his absence, by the Vice-President of the 
Council, to be used by them as occasion may require: and 
it shall be called. The Great Seal of the Colony of New- Jersey. 

XII. That the Judges of the Supreme Court shall continue 
in office for seven years : the Judges of the Inferior Court of 
Common Pleas in the several counties, Justices of the Peace, 
Clerks of the Supreme Court, Clerks of the Inferior Court of 
Common Pleas and Quarter Sessions, the Attorney-General, 
and Provincial Secretary, shall continue in office for five years : 
and the Provincial Treasurer shall continue in office for one 
year; and that they shall be severally appointed by the Council 
and Assembly, in manner aforesaid, and commissioned by the 
Governor, or, in his absence, the Vice-President of the Council. 
Provided always, that the said officers, severally, shall be 
capable of being re-appointed, at the end of the terms severally 
before limited; and that any of the said officers shall be liable 
to be dismissed, when adjudged guilty of misbehaviour, by the 
Council, on an impeachment of the Assembly. . . . 

XX. That the legislative department of this government 
may, as much as possible, be preserved from all suspicion of 
corruption, none of the Judges of the Supreme or other Courts, 
Sheriffs, or any other person or persons possessed of any post of 
profit under the government, other than Justices of the Peace, 
shall be entitled to a seat in the Assembly: but that, on his 
being elected, and taking his seat, his office or post shall be 
considered as vacant. 

XXI. That all the laws of this Province, contained in the 
edition lately published by Mr. Allinson, shall be and remain 
in full force, until altered by the Legislature of this Colony 
(such only excepted, as are incompatible with this Charter) 
and shall be, according as heretofore, regarded in all respects, 
by all civil officers, and others, the good people of this Province. 

XXII. That the common law of England, as well as so much 



68 THE FORMATION OF CONSTITUTIONS 

of the statute law, as have been heretofore practised in this 
Colony, shaU still remain in force, until they shall be altered 
by a future law of the Legislature; such parts only excepted, 
as are repugnant to the rights and privileges contained in this 
Charter ; and that the inestimable right of trial by jury shall 
remain confirmed as a part of the law of this Colony without 
repeal, forever. . . . 

Provided always, and it is the true intent and meaning of 
this Congress, that if a reconciliation between Great-Britain 
and these Colonies should take place, and the latter be taken 
again under the protection and government of the crown of 
Britain, this Charter shall be null and void — otherwise to 
remain firm and inviolable. 

24. Constitution of Virginia — I'j'jd} 

We therefore, the delegates and representatives of the good 
people of Virginia, having maturely considered the premises, 
and viewing with great concern the deplorable conditions to 
which this once happy country must be reduced, unless some 
regular, adequate mode of civil polity is speedily adopted, and 
in compliance with a recommendation of the General Congress, 
do ordain and declare the future form of government of Virginia 
to be as f olloweth : 

The legislative, executive, and judiciary department, shall 
be separate and distinct, so that neither exercise the powers 
properly belonging to the other: nor shall an}^ person exercise 
the powers of more than one of them, at the same time; except 
that the Justices of the County Courts shall be eligible to either 
House of Assembly. 

The legislative shall be formed of two distinct branches, who, 
together, shall be a complete Legislature. They shall meet 
once, or oftener, every year, and shall be called. The General 
Assembly of Virginia. One of these shall be called, The House 
of Delegates, and consist of two Representatives, to be chosen 
for each county, and for the district of West- Augusta, annually, 

^ Thorpe, Federal and State Constitutions, vii, 3815-19. 



STATE CONSTITUTIONS 69 

of such men as actually reside in, and are freeholders of the 
same, or duly qualified according to law, and also of the Dele- 
gate or Representative, to be chosen annually for the city of 
Wilhamsburgh, and one for the borough of Norfolk, and a 
Representative for each of such other cities and boroughs, as 
may hereafter be allowed particular representation by the 
legislature; but when any city or borough shall so decrease, as 
that the number of persons, having right of suffrage therein, 
shall have been, for the space of seven years successively, less 
than half the number of voters in some one county in Virginia, 
such city or borough thenceforward shall cease to send a Dele- 
gate or Representative to the Assembly. 

The other shall be called The Senate, and consist of twenty- 
four members, of whom thirteen shall constitute a House to 
proceed on business; for whose election, the different counties 
shall be divided into twenty-four districts ; and each county of 
the respective district, at the time of the election of its Dele- 
gates, shall vote for one Senator, who is actually a resident and 
freeholder within the district, or duly qualified according to 
law, and is upwards of twenty-five years of age ; and the Sher- 
iffs of each county, within five days at farthest, after the last 
county election in the district, shall meet at some convenient 
place, and from the poll, so taken in their respective counties, 
return, as a Senator, the man who shall have the greatest 
number of votes in the whole district. To keep up this Assem- 
bly by rotation, the districts shall be equally divided into four 
classes and numbered by lot. At the end of one year after the 
general election, the six members, elected by the first division, 
shall be displaced, and the vacancies thereby occasioned sup- 
pHed from such class or division, by new election, in the manner 
aforesaid. This rotation shall be applied to each division, 
according to its number, and continued in due order annually. 

The right of suffrage in the election of members for both 
Houses shall remain as exercised at present; and each House 
shall choose its own Speaker, appoint its own officers, settle its 
own rules of proceeding, and direct writs of election, for the 
supplying intermediate vacancies. 



70 THE FORMATION OF CONSTITUTIONS 

All laws shall originate in the House of Delegates, to be ap- 
proved of or rejected by the Senate, or to be amended, with 
consent of the House of Delegates; except money-bills, which 
in no instance shall be altered by the Senate, but wholly ap- 
proved or rejected. 

A Governor, or chief magistrate, shall be chosen annually 
by joint ballot of both Houses (to be taken in each House 
respectively) deposited in the conference room; the boxes 
examined jointly by a committee of each House, and the num- 
bers severally reported to them, that the appointments may 
be entered (which shall be the mode of taking the joint ballot 
of both Houses, in all cases), who shall not continue in that 
office, longer than three years successively, nor be Eligible, 
until the expiration of four years after he shall have been out 
of that office. An adequate, but moderate salary shall be settled 
on him, during his continuance in office; and he shall, with the 
advice of a Council of State, exercise the executive powers of 
government, according to the laws of this Commonwealth; 
and shall not, under any pretence, exercise any power or pre- 
rogative, by virtue of any law, statute or custom of England. 
But he shall, with the advice of the Council of State, have the 
power of granting reprieves or pardons, except where the 
prosecution shall have been carried on by the House of Dele- 
gates, or the law shall otherwise particularly direct; in which 
cases, no reprieve or pardon shall be granted, but by resolve of 
the House of Delegates. 

Either House of the General Assembly may adjourn them- 
selves respectively. The Governor shall not prorogue or ad- 
journ the Assembly, during their sitting, nor dissolve them at 
any time; but he shall, if necessary, either by advice of the 
Council of State, or on application of a majority of the House 
of Delegates, call them before the time to which they shall 
stand prorogued or adjourned. 

A Privy Council, or Council of State, consisting of eight 
members, shall be chosen, by joint ballot of both Houses of 
Assembly, either from their own members or the people at 
large, to assist in the administration of government. They 



STATE CONSTITUTIONS 71 

shall annually choose, out of their own members, a President, 
who, in case of death, inability, or absence of the Governor 
from the government, shall act as Lieutenant-Governor, Four 
members shall be sufficient to act, and their advice and pro- 
ceedings shall be entered on record, and signed by the mem- 
bers present, (to any part whereof, any member may enter his 
dissent) to be laid before the General Assembly, when called 
for by them. This Council may appoint their own Clerk, who 
shall have a salary settled by law, and take an oath of secrecy, 
in such matters as he shall be directed by the board to conceal. 
A sum of money, appropriated to that purpose, shall be divided 
annually among the members, in proportion to their attend- 
ance; and they shall be incapable, during their continuance in 
office, of sitting in either House of Assembly. Two members 
shall be removed, by joint ballot of both Houses of Assembly, 
at the end of every three years, and be ineligible for the three 
next years. These vacancies, as well as those occasioned by 
death or incapacity, shall be suppHed by new elections, in the 
same manner. 

The Delegates for Virginia to the Continental Congress 
shall be chosen annually, or superseded in the mean time, by 
joint ballot of both Houses of Assembly. 

The present militia officers shall be continued, and vacan- 
cies supplied by appointment of the Governor, with the advice 
of the Privy- Council, on recommendations from the respective 
County Courts; but the Governor and Council shall have a 
power of suspending any officer, and ordering a Court Martial, 
on complaint of misbehaviour or inability, or to supply vacan- 
cies of officers, happening when in actual service. 

The Governor may embody the militia, with the advice of 
the Privy Council; and when embodied, shall alone have the 
direction of the militia, under the laws of the country. 

The two Houses of Assembly shall, by joint ballot, appoint 
Judges of the Supreme Court of Appeals, and General Court, 
Judges in Chancery, Judges of Admiralty, Secretary, and the 
Attorney- General, to be commissioned by the Governor, and 
continue in office during good behaviour. In case of death, in- 



72 THE FORMATION OF CONSTITUTIONS 

capacity, or resignation, the Governor, with the advice of the 
Privy Council, shall appoint persons to succeed in office, to be 
approved or displaced by both Houses. These officers shall 
have fixed and adequate salaries, and, together with all others, 
holding lucrative offices, and all ministers of the gospel, of 
every denomination, be incapable of being elected members 
of either House of Assembly or the Privy Council. 

The Governor, with the advice of the Privy Council, shall 
appoint Justices of the Peace for the counties; and in case of 
vacancies, or a necessity of increasing the number hereafter, 
such appointments to be made upon the recommendation of 
the respective County Courts. The present acting Secretary in 
Virginia, and Clerks of all the County Courts, shall continue in 
office. In case of vacancies, either by death, incapacity, or 
resignation, a Secretary shall be appointed, as before directed; 
and the Clerks, by the respective Courts. The present and 
future Clerks shall hold their offices during good behaviour, 
to be judged of, and determined in the General Court. The 
Sheriffs, and Coroners shall be nominated by the respective 
Courts, approved by the Governor, with the advice of the 
Privy Council, and commissioned by the Governor. The Jus- 
tices shall appoint Constables; and all fees of the aforesaid 
officers be regulated by law. 

The Governor, when he is out of office, and others, offending 
against the State, either by mal-administration, corruption, or 
other means, by which the safety of the State may be endan- 
gered, shall be impeachable by the House of Delegates. Such 
impeachment to be prosecuted by the Attorney- General, or 
such other person or persons, as the House may appoint in the 
General Court, according to the laws of the land. If found 
guilty, he or they shall be either forever disabled to hold any 
office under government, or be removed from such office pro 
tempore, or subjected to such pains or penalties as the laws shall 
direct. 

If all or any of the Judges of the General Court should on 
good grounds (to be judged of by the House of Delegates) be 
accused of any of the crimes or offences above mentioned, such 



STATE CONSTITUTIONS 73 

House of Delegates, may, in like manner, impeach the Judge 
or Judges so accused, to be prosecuted in the Court of Appeals; 
and he or they, if found guilty, shall be punished in the same 
manner as is prescribed in the preceding clause. 

Commissions and grants shall run, "/w the name of the Com- 
monwealth of Virginia,''^ and bear test by the Governor, with 
the seal of the Commonwealth annexed. Writs shall run in 
the same manner, and bear test by the Clerks of the several 
Courts. Indictments shall conclude, ^^ Against the peace and 
dignity of the Commonwealth.^^ 

A Treasurer shall be appointed annually, by joint ballot of 
both Houses. . . . 



CHAPTER IX 

THE FIRST FEDERAL CONSTITUTION 

The Articles of Confederation may be studied from two points of view. 
On the one hand, they may be viewed as the first and necessarily imper- 
fect, attempt of the colonies to form a confederation. When the absence 
of inter-colonial unity previous to the issues brought to the front by the 
Stamp Act is kept in mind, this "league of friendship" appears as a 
notable move in the direction of perpetual union. On the other hand, 
American society had political wants which this confederation failed to 
satisfy. By the year 1781, when the last of the States ratified the Articles, 
the inadequacy of the new federal government was already apparent to 
everyone. 

25. The Articles of Confederation.^ 

Articles of Confederation and perpetual Union between the 
States of Newhamshire, Massachusetts-bay, Rhodeisland and 
Providence Plantations, Connecticut, 'New-York, New- Jersey, 
Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, 
South-Carolina and Georgia. 

Article I. The stile of this confederacy shall be "The 
United States of America." 

Article II. Each State retains its sovereignty, freedom and 
independence, and every power, jurisdiction and right, which 
is not by this confederation expressly delegated to the United 
States, in Congress assembled. 

Article III. The said States hereby severally enter into a 
firm league of friendship with each other, for their common 
defence, the security of their liberties, and their mutual and 
general welfare, binding themselves to assist each other, against 
all force offered to, or attacks made upon them, or any of them, 
on account of religion, sovereignty, trade, or any other pre- 
tence whatever. 

Article IV. The better to secure and perpetuate mutual 
friendship and intercourse among the people of the different 
^ Revised Statutes of the United States (1878), 7-1 1. 



THE FIRST FEDERAL CONSTITUTION 75 

States in this Union, the free inhabitants of each of these 
States, paupers, vagabonds and fugitives from justice excepted, 
shall be entitled to all privileges and immunities of free citizens 
in the several States; and the people of each State shall have 
free ingress and regress to and from any other State, and shall 
enjoy therein all the privileges of trade and commerce, subject 
to the same duties, impositions and restrictions as the inhabit- 
ants thereof respectively, provided that such restrictions shall 
not extend so far as to prevent the removal of property im- 
ported into any State, to any other state of which the owner is 
an inhabitant; provided also that no imposition, duties or 
restriction shall be laid by any State, on the property of the 
United States, or either of them. 

If any Person guilty of, or charged with treason, felony, or 
other high misdemeanor in any State, shall flee from justice, 
and be found in any of the United States, he shall upon demand 
of the Governor or Executive power, of the State from which he 
fled, be delivered up and removed to the State having jurisdic- 
tion of his offence. 

Full faith and credit shall be given in each of these States to 
the records, acts and judicial proceedings of the courts and 
magistrates of every other State. 

Article V. Foe. the more convenient management of the 
general interest of the United States, delegates shall be annu- 
ally appointed in such manner as the legislature of each State 
shall direct, to meet in Congress on the first Monday in No- 
vember, in every year, with a power reserved to each State, to 
recall its delegates, or any of them, at any time within the year, 
and to send others in their stead, for the remainder of the year. 

No State shall be represented in Congress by less than two, 
nor by more than seven members ; and no person shall be cap- 
able of being a delegate for more than three years in any term 
of six years; nor shall any person, being a delegate, be capable 
of holding any office under the United States, for which he, or 
another for his benefit receives any salary, fees or emolument 
of any kind. 

Each State shall maintain its own delegates in a meeting of 



^6 THE FORMATION OF CONSTITUTIONS 

the States, and while they act as members of the committee of 
the States. 

In determining questions in the United States, in Congress 
assembled, each State shall have one vote. 

Freedom of speech and debate in Congress shall not be 
impeached or questioned in any court, or place out of Congress, 
and the members of Congress shall be protected in their per- 
sons from arrests and imprisonments, during the time of their 
going to and from, and attendance on Congress, except for 
treason, felony, or breach of the peace. 

Article VI. No State without the consent of the United 
States in Congress assembled, shall send any embassy to, or 
receive any embassy from, or enter into any conference, agree- 
ment, alliance or treaty with any king, prince or state ; nor shall 
any person holding any office of profit or trust under the United 
States, or any of them, accept of any present, emolument, 
office or title of any kind whatever from any king, prince or 
foreign state ; nor shall the United States in Congress assembled, 
. or any of them, grant any title of -nobility. 
^^^^^''•'^' ' No two or more States shall enter into any treaty, confed- 
eration or alliance whatever between them, without the con- 
sent of the United States in Congress assembled, specifying 
accurately the purposes for which the same is to be entered 
into, and how long it shall continue. 

No State shall lay any imposts or duties, which may interfere 
with any stipulations in treaties, entered into by the United 
States in Congress assembled, with any king, prince or state, in 
pursuance of any treaties already proposed by Congress, to the 
courts of France and Spain. 

No vessels of war shall be kept up in time of peace by any 
State, except such number only, as shall be deemed necessary 
by the United States in Congress assembled, for the defence of 
such State, or its trade ; nor shall any body of forces be kept up 
by any State, in time of peace, except such number only, as in 
the judgment of the United States, in Congress assembled, 
shall be deemed requisite to garrison the forts necessary for the 
defence of such State; but every State shall always keep up a 



THE FIRST FEDERAL CONSTITUTION ^^ 

well regulated and disciplined militia, sufficiently armed and 
accoutered, and shaU provide and constantly have ready for 
use, in public stores, a due number of field pieces and tents, and 
a proper quantity of arms, ammunition and camp equipage. 

No State shall engage in any war without the consent of the 
United States in Congress assembled, unless such State be 
actually invaded by enemies, or shall have received certain 
advice of a resolution being formed by some nation of Indians 
to invade such State, and the danger is so imminent as not to 
admit of a delay, till the United States in Congress assembled 
can be consulted : nor shall any State grant commissions to any 
ships or vessels of war, nor letters of marque or reprisal, except 
it be after a declaration of war by the United States in Congress 
assembled, and then only against the kingdom or state and the 
subjects thereof, against which war has been so declared, and 
under such regulations as shall be established by the United 
States in Congress assembled, unless such State be infested 
by pirates, in which case vessels of war may be fitted out for 
that occasion, and kept so long as the danger shall continue, 
or until the United States in Congress assembled shall deter- 
mine otherwise. 

Article VII. When land-forces are raised by any State for 
the common defence, all officers of or under the rank of colonel, 
shall be appointed by the Legislature of each State respectively 
by whom such forces shall be raised, or in such manner as such 
State shall direct, and all vacancies shall be ffiled up by the 
State which first made the appointment. 

Article VIII. All charges of war, and all other expenses 
that shall be-incurred for the common defence or general wel- 
fare, and allowed by the United States in Congress assembled, 
shall be defrayed out of a common treasury, which shaU be 
supplied by the several States, in proportion to the value of 
all land within each State, granted to or surveyed for any per- 
son, as such land and the buildings and improvements thereon 
shall be estimated according to such mode as the United States 
in Congress assembled, shall from time to time direct and 
appoint. 



78 THE FORMATION OF CONSTITUTIONS 

The taxes for paying that proportion shall be laid and levied 
by the authority and direction of the Legislatures of the several 
States within the time agreed upon by the United States in 
Congress assembled. 

Article IX. The United States in Congress assembled, shall 
have the sole and exclusive right and power of determining on 
peace and war, except in the cases mentioned in the sixth 
article — of sending and receiving ambassadors — entering 
into treaties and alliances, provided that no treaty of commerce 
shall be made whereby the legislative power of the respective 
States shall be restrained from imposing such imposts and 
duties on foreigners, as their own people are subjected to, or 
from prohibiting the exportation or importation of any species 
of goods or commodities whatsoever — of establishing rules 
for deciding in all cases, what captures on land or water shall 
be legal, and in what manner prizes taken by land or naval 
forces in the service of the United States shall be divided or 
appropriated — of granting letters of marque and reprisal in 
times of peace — appointing courts for the trial of piracies and 
felonies committed on the high seas and estabhshing courts for 
receiving and determining finally appeals in all cases of cap- 
tures, provided that no member of Congress shall be ap- 
pointed a judge of any of the said courts. 

The United States in Congress assembled shall also be the 
last resort on appeal in all disputes and differences now sub- 
sisting or that hereafter may arise between two or more States 
concerning boundary, jurisdiction or any other cause whatever; 
which authority shall always be exercised in the manner fol- 
lowing. Whenever the legislative or executive authority or 
lawful agent of any State in controversy with another shall 
present a petition to Congress, stating the matter in question 
and praying for a hearing, notice thereof shall be given by 
order of Congress to the legislative or executive authority of 
the other State in controversy, and a day assigned for the 
appearance of the parties by their lawful agents, who shall then 
be directed to appoint by joint consent, commissioners or 
judges to constitute a court for hearing and determining the 



THE FIRST FEDERAL CONSTITUTION 79 

matter in question: but if they cannot agree, Congress shall 
name three persons out of each of the United States, and from 
the list of such persons each party shall alternately strike out 
one, the petitioners beginning, until the number shall be re- 
duced to thirteen; and from that number not less than seven, 
nor more than nine names as Congress shall direct, shall in the 
presence of Congress be drawn out by lot, and the persons 
whose names shall be so drawn or any five of them, shall be 
commissioners or judges, to hear and finally determine the con- 
troversy, so always as a major part of the judges who shall hear 
the cause shall agree in the determination : and if either party 
shall neglect to attend at the day appointed, without showing 
reasons, which Congress shall judge sufficient, or being present 
shall refuse to strike, the Congress shall proceed to nominate 
three persons out of each State, and the Secretary of Congress 
shall strike in behalf of such party absent or refusing; and the 
judgment and sentence of the court to be appointed, in the 
manner before prescribed, shall be final and conclusive; and if 
any of the parties shall refuse to submit to the authority of 
such court, or to appear or defend their claim or cause, the 
court shall nevertheless proceed to pronounce sentence, or 
judgment, which shall in like manner be final and decisive, 
the judgment or sentence and other proceedings being in either 
case transmitted to Congress, and lodged among the acts of 
Congress for the security of the parties concerned: provided 
that every commissioner, before he sits in judgment, shall take 
an oath to be administered by one of the judges of the supreme 
or superior court of the State, where the cause shall be tried, 
''well and truly to hear and determine the matter in question, 
according to the best of his judgment, without favour, affec- 
tion or hope of reward:" provided also that no State shall be 
deprived of territory for the benefit of the United States. 

All controversies concerning the private right of soil claimed 
under different grants of two or more States, whose jurisdiction 
as they may respect such lands, and the States which passed 
such grants are adjusted, the said grants or either of them being 
at the same time claimed to have originated antecedent to such 



8o THE FORMATION OF CONSTITUTIONS 

settlement of jurisdiction, shall on the petition of either party 
to the Congress of the United States, be finally determined as 
near as may be in the same manner as is before prescribed for 
deciding disputes respecting territorial jurisdiction between 
different States. 

The United States in Congress assembled shall also have the 
sole and exclusive right and power of regulating the alloy and 
value of coin struck by their own authority, or by that of the 
respective States — fixing the standard of weights and measures 
throughout the United States — regulating the trade and man- 
aging all affairs with the Indians, not members of any of the 
States, provided that the legislative right of any State within 
its own limits be not infringed or violated — estabhshing and 
regulating post-ofifices from one State to another, throughout 
all the United States, and exacting such postage on the papers 
passing thro' the same as may be requisite to defray the ex- 
penses of the said ofl&ce — appointing all officers of the land 
forces, in the service of the United States, excepting regimental 
officers — appointing all the officers of the naval forces, and 
commissioning all officers whatever in the service of the United 
States — making rules for the government and regulation of 
the said land and naval forces, and directing their operations. 

The United States in Congress assembled shall have author- 
ity to appoint a committee, to sit in the recess of Congress, to 
be denominated "a Committee of the States," and to consist 
of one delegate from each State; and to appoint such other 
committees and civil officers as may be necessary for manageing 
the general affairs of the United States under their direction — 
to appoint one of their number to preside, provided that no 
person be allowed to serve in the office of president more than 
one year in any term of three years ; to ascertain the necessary 
sums of money to be raised for the service of the United States, 
and to appropriate and apply the same for defraying the public 
expenses — to borrow money, or emit bills on the credit of the 
United States, transmitting every half year to the respective 
States an account of the sums of money so borrowed or emitted, 
'■ — to build and equip a navy — to agree upon the number of 



THE FIRST FEDERAL CONSTITUTION 8i 

land forces, and to make requisitions from each State for its 
quota, in proportion to the number of white inhabitants in such 
State; which requisition shall be binding, and thereupon the 
Legislature of each State shall appoint the regimental officers, 
raise the men and cloath, arm and equip them in a soldier like 
manner, at the expense of the United States; and the officers 
and men so cloathed, armed and equipped shall march to the 
place appointed, and within the time agreed on by the United 
States in Congress assembled : but if the United States in Con- 
gress assembled shall, on consideration of circumstances judge 
proper that any State should not raise men, or should raise a 
smaller number than its quota, and that any other State should 
raise a greater number of men than the quota thereof, such 
extra number shall be raised, officered, cloathed, armed and 
equipped in the same manner as the quota of such State, unless 
the legislature of such State shall judge that such extra num- 
ber cannot be safely spared out of the same, in which case 
they shall raise officer, cloath, arm and equip as many of such 
extra number as they judge can be safely spared. And the 
officers and men so cloathed, armed and equipped, shall march 
to the place appointed, and within the time agreed on by the 
United States in Congress assembled. 

The United States in Congress assembled shall never engage 
in a war, nor grant letters of marque and reprisal in time of 
peace, nor enter into any treaties or alliances, nor coin money, 
nor regulate the value thereof, nor ascertain the sums and ex- 
penses necessary for the defence and welfare of the United 
States, or any of them, nor emit bills, nor borrow money on the 
credit of the United States, nor appropriate money, nor agree 
upon the number of vessels of war, to be built or purchased, or 
the number of land or sea forces to be raised, nor appoint a 
commander in chief of the army or navy, unless nine States 
assent to the same: nor shall a question on any other point, 
except for adjourning from day to day be determined, unless 
by the votes of a majority of the United States in Congress 
assembled. 

The Congress of the United States shall have power to 



82 THE FORMATION OF CONSTITUTIONS 

adjourn to any time within the year, and to any place within 
the United States, so that no period of adjournment be for a 
longer duration than the space of six months, and shall publish 
the journal of their proceedings monthly, except such parts 
thereof relating to treaties, alliances or military operations, as 
in their judgment require secresy; and the yeas and nays of the 
delegates of each State on any question shall be entered on the 
journal, when it is desired by any delegate; and the delegates 
of a State, or any of them, at his or their request shall be 
furnished with a transcript of the said journal, except such 
parts as are above excepted, to lay before the Legislatures of 
the several States. 

Article X. The committee of the States, or any nine of 
them, shall be authorized to execute, in the recess of Congress, 
such of the powers of Congress as the United States in Congress 
assembled, by the consent of nine States, shall from time to 
time think expedient to vest them with ; provided that no power 
be delegated to the said committee, for the exercise of which, 
by the articles of confederation, the voice of nine States in the 
Congress of the United States assembled is requisite. 

Article XI. Canada acceding to this confederation, and 
joining in the measures of the United States, shall be admitted 
into, and entitled to all the advantages of this Union: but no 
other colony shall be admitted into the same, unless such ad- 
mission be agreed to by nine States. 

Article XII. All bills of credit emitted, monies borrowed 
and debts contracted by, or under the authority of Congress, 
before the assembling of the United States, in pursuance of the 
present confederation, shall be deemed and considered as a 
charge against the United States, for payment and satisfaction 
whereof the said United States, and the public faith are hereby 
solemnly pledged. 

Article XIII. Every State shall abide by the determina- 
tions of the United States in Congress assembled, on all ques- 
tions which by this confederation are submitted to them. And 
the articles of this confederation shall be inviolably observed 
by every State, and the Union shall be perpetual; nor shall any 



THE FIRST FEDERAL CONSTITUTION 83 

alteration at any time hereafter be made in any of them ; unless 
such alteration be agreed to in a Congress of the United States, 
and be afterwards confirmed by the Legislatures of every State. 

And whereas it hath pleased the Great Governor of the World 
to incline the hearts of the Legislatures we respectively repre- 
sent in Congress, to approve of, and to authorize us to ratify 
the said articles of confederation and perpetual union. Know 
ye that we the undersigned delegates, by virtue of the power 
and authority to us given for that purpose, do by these presents, 
in the name and in behalf of our respective constituents, fully 
and entirely ratify and confirm each and every of the said arti- 
cles of confederation and perpetual union, and all and singular 
the matters and things therein contained: and we do further 
solemnly plight and engage the faith of our respective constitu- 
ents, that they shall abide by the determinations of the United 
States in Congress assembled, on all questions, which by the 
said confederation are submitted to them. And that the articles 
thereof shall be inviolably observed by the States we respect- 
ively represent, and that the Union shall be perpetual. 

In witness whereof we have hereunto set our hands in Con- 
gress. Done at Philadelphia in the State of Pennsylvania the 
ninth day of July in the year of our Lord one thousand seven 
hundred and seventy-eight, and in the third year of the inde- 
pendence of America. 



CHAPTER X 

DEFECTS OF THE CONFEDERATION 

No one saw and described more clearly the real nature of government 
under the Articles of Confederation than Alexander Hamilton. In collab- 
oration with Madison and Jay, he pubUshed in various journals, under 
the pen-name of "Pubhus," a series of letters addressed to the people of 
the State of New York in advocacy of the new Constitution. In the 
division of labor among these three, Hamilton undertook to examine the 
defects of the confederation and to expound the details of the projected 
government. For both tasks he was admirably fitted, for to remarkable 
powers of exposition he joined extraordinary keenness of observation and 
criticism. Numbers 15 and 21 of the Federalist, as these letters were com- 
monly called, appeared in the Independent Journal on December i and 
12, 1787. 

26. Dependence of the Confederation on the State Governments} 

. . . The great and radical vice in the construction of the 
existing Confederation is in the principle of LEGISLATION 
for STATES or GOVERNMENTS, in their CORPORATE or 
COLLECTIVE CAPACITIES, and as contradistinguished 
from the INDIVIDUALS of which they consist. Though this 
principle does not run through all the powers delegated to the 
Union, yet it pervades and governs those on which the efficacy 
of the rest depends. Except as to the rule of apportionment, 
the United States have an indefinite discretion to make requi- 
sitions for men and money; but they have no authority to 
raise either, by regulations extending to the individual citizens 
of America. The consequence of this is, that, though in theory 
their resolutions concerning those objects are laws, constitu- 
tionally binding on the members of the Union, yet in practice 
they are mere recommendations, which the States observe or 
disregard at their option. 

It is a singular instance of the capriciousness of the human 
mind, that after all the admonitions we have had from experi- 

1 Federalist (Ford ed.). No. 15, 90-95. 



DEFECTS OF THE CONFEDERATION 85 

ence on this head, there should still be found men, who object 
to the New Constitution, for deviating from a principle which 
has been found the bane of the old; and which is, in itself, 
evidently incompatible with the idea of government; a 
principle, in short, which, if it is to be executed at all, must 
substitute the violent and sanguinary agency of the sword to 
the mild influence of the Magistracy. 

There is nothing absurd or impracticable in the idea of 
a league or alliance between independent nations, for certain 
defined purposes precisely stated in a treaty; regulating all the 
details of time, place, circumstance, and quantity; leaving 
nothing to future discretion; and depending for its execution 
on the good faith of the parties. Compacts of this kind exist 
among all civilized nations, subject to the usual vicissitudes of 
peace and war, of observance and non-observance, as the inter- 
ests or passions of the contracting powers dictate. In the early 
part of the present century, there was an epidemical rage in 
Europe for this species of compacts; from which the politi- 
cians of the times fondly hoped for benefits which were never 
realized. With a view to establishing the equilibrium of power 
and the peace of that part of the world, all the resources of 
negotiation were exhausted, and triple and quadruple alliances 
were formed; but they were scarcely formed before they were 
broken, giving an instructive but afflicting lesson to mankind, 
how little dependence is to be placed on treaties which have no 
other sanction than the obligations of good faith; and which 
oppose general considerations of peace and justice to the im- 
pulse of any immediate interest or passion. 

If the particular States in this country are disposed to stand 
in a similar relation to each other, and to drop the project of a 
general discretionary superintendence, the scheme would indeed 
be pernicious, and would entail upon us all the mischiefs which 
have been enumerated under the first head; but it would have 
the merit of being, at least, consistent and practicable. Aban- 
doning all views towards a Confederate Government, this 
would bring us to a simple alliance offensive and defensive; and 
would place us in a situation to be alternately friends and en- 



86 THE FORMATION OF CONSTITUTIONS 

emies of each other, as our mutual jealousies and rivalships, 
nourished by the intrigues of foreign nations, should prescribe 
to us. 

But if we are unwilling to be placed in this perilous situation ; 
if we still will adhere to the design of a National Government, 
or, which is the same thing, of a superintending power, under 
the direction of a common council, we must resolve to incor- 
porate into our plan those ingredients which may be considered 
as forming the characteristic difference between a league and a 
Government; we must extend the authority of the Union to the 
persons of the citizens, — the only proper objects of Govern- 
ment. 

Government implies the power of making laws. It is essen- 
tial to the idea of a law, that it be attended with a sanction; 
or, in other words, a penalty or punishment for disobedience. 
If there be no penalty annexed to disobedience, the resolutions 
or commands which pretend to be laws will, in fact, amount 
to nothing more than advice or recommendation. This penalty, 
whatever it may be, can only be inflicted in two ways: by the 
agency of the Courts and Ministers of Justice, or by military 
force; by the coercion of the magistracy, or by the coercion 
of arms. The first kind can evidently apply only to men : the 
last kind must, of necessity, be employed against bodies politic, 
or communities, or States. It is evident, that there is no pro- 
cess of a Court by which the observance of the laws can, in the 
last resort, be enforced. Sentences may be denounced against 
them for violations of their duty ; but these sentences can only 
be carried into execution by the sword. In an association where 
the general authority is confined to the collective bodies of the 
communities that compose it, every breach of the laws must 
involve a state of war ; and military execution must become the 
only instrument of civil obedience. Such a state of things can 
certainly not deserve the name of Government, nor would any 
prudent man choose to commit his happiness to it. 

There was a time when we were told that breaches, by the 
States, of the regulations of the Federal authority were not to 
be expected; that a sense of common interest would preside 



DEFECTS OF THE CONFEDERATION 87 

over the conduct of the respective merabers, and would beget 
a full compUance with all the constitutional requisitions of the 
Union. This language, at the present day, would appear as 
wild as a great part of what we now hear from the same quarter 
will be thought, when we shall have received further lessons 
from that best oracle of wisdom, experience. It at all times 
betrayed an ignorance of the true springs by which human 
conduct is actuated, and behed the original inducements to the 
estabUshment of civil power. Why has Government been in- 
stituted at all? Because the passions of men will not conform 
to the dictates of reason and justice, without constraint. Has 
it been found that bodies of men act with more rectitude or 
greater disinterestedness than individuals? The contrary of 
this has been inferred by all accurate observers of the conduct 
of mankind; and the inference is founded upon obvious reasons. 
Regard to reputation has a less active influence, when the in- 
famy of a bad action is to be divided among a number, than 
when it is to fall singly upon one. A spirit of faction, which 
is apt to mingle its poison in the deliberations of all bodies of 
men, will often hurry the persons of whom they are composed 
into improprieties and excesses, for which they would blush 
in a private capacity. 

In addition to all this, there is, in the nature of sovereign 
power, an impatience of control, that disposes those who are 
invested with the exercise of it, to look with an evil eye upon all 
external attempts to restrain or direct its operations. From 
this spirit it happens, that in every political association which 
is formed upon the principle of uniting in a common interest a 
number of lesser sovereignties, there will be found a kind of 
eccentric tendency in the subordinate or inferior orbs, by the 
operation of which there will be a perpetual effort in each to fly 
off from the common centre. This tendency is not difficult to 
be accounted for. It has its origin in the love of power. Power 
controlled or abridged is almost always the rival and enemy 
of that power by which it is controlled or abridged. This simple 
proposition will teach us, how Httle reason there is to expect, 
that the persons intrusted with the administration of the affairs 



88 THE FORMATION OF CONSTITUTIONS 

of the particular members of a Confederacy will at all times 
be ready, with perfect good-humor, and an unbiased regard to 
the public weal, to execute the resolutions or decrees of the 
general authority. The reverse of this results from the consti- 
tution of human nature. 

If therefore the measures of the Confederacy cannot be 
executed, without the intervention of the particular adminis- 
trations, there will be little prospect of their being executed at 
all. The rulers of the respective members, whether they have a 
constitutional right to do it or not, will undertake to judge of 
the propriety of the measures themselves. They will consider 
the conformity of the thing proposed or required to their im- 
mediate interests or aims; the momentary conveniences or 
inconveniences that would attend its adoption. All this will be 
done; and in a spirit of interested and suspicious scrutiny, 
without that knowledge of National circumstances and reasons 
of State, which is essential to a right judgment, and with that 
strong predilection in favor of local objects, which can hardly 
fail to mislead the decision. The same process must be repeated 
in every member of which the body is constituted; and the 
execution of the plans, framed by the councils of the whole, 
will always fluctuate on the discretion of the ill-informed and 
prejudiced opinion of every part. Those who have been con- 
versant in the proceedings of popular assemblies; who have 
seen how difficult it often is, when there is no exterior pressure 
of circumstances, to bring them to harmonious resolutions on 
important points, will readily conceive how impossible it must 
be to induce a number of such assemblies, deliberating at a 
distance from each other, at different times, and under different 
impressions, long to cooperate in the same views and pursuits. 

27. Specific Defects of the Confederation} 

. . . The next most palpable defect of the subsisting Con- 
federation is the total want of a sanction to its laws. The United 
States, as now composed, have no powers to exact obedience, 

^ Federalist (Ford ed.), No. 21, 124-129. 



DEFECTS OF THE CONFEDERATION 89 

or punish disobedience to their resolutions, either by pecuniary 
mulcts, by a suspension or divesture of privileges, or by any 
other constitutional mode. There is no express delegation of 
authority to them to use force against delinquent members; 
and if such a right should be ascribed to the Federal head, as 
resulting from the nature of the social compact between the 
States, it must be by inference and construction, in the face 
of that part of the second Article, by which it is declared, 
"that each State shall retain every power, jurisdiction, and 
right, not expressly delegated to the United States in Congress 
assembled." There is, doubtless, a striking absurdity in sup- 
posing that a right of this kind does not exist, but we are 
reduced to the dilemma either of embracing that supposition, 
preposterous as it may seem, or of contravening or explaining 
away a provision, which has been of late a repeated theme of 
the eulogies of those who oppose the new Constitution; and 
the want of which, in that plan, has been the subject of much 
plausible animadversion, and severe criticism. If we are un- 
willing to impair the force of this applauded provision, we shall 
be obliged to conclude, that the United States afford the ex- 
traordinary spectacle of a Government, destitute even of the 
shadow of constitutional power to enforce the execution of its 
own laws. It will appear, from the specimens which have been 
cited, that the American Confederacy, in this particular, 
stands discriminated from every other institution of a similar 
kind, and exhibits a new and unexampled phenomenon in the 
political world. 

The want of a mutual guaranty of the State Governments is 
another capital imperfection in the Federal plan. There is 
nothing of this kind declared in the Articles that compose it; 
and to imply a tacit guaranty from consideration of utility, 
would bfe a still more flagrant departure from the clause which 
has been mentioned, than to imply a tacit power of coercion, 
from the like considerations. The want of a guaranty, though 
it might in its consequences endanger the Union, does not so 
immediately attack its existence, as the want of a constitutional 
sanction to its laws. 



90 THE FORMATION OF CONSTITUTIONS 

Without a guaranty, the assistance to be derived from the 
Union in repelling those domestic dangers, which may some- 
times threaten the existence of the State Constitutions, must 
be renounced. Usurpation may rear its crest in each State, 
and trample upon the liberties of the people; while the National 
Government could legally do nothing more than behold its 
encroachments with indignation and regret. A successful fac- 
tion may erect a tyranny on the ruins of order and law; while 
no succor could constitutionally be afforded by the Union to 
the friends and supporters of the Government. The tempest- 
uous situation from which Massachusetts has scarcely emerged, 
evinces that dangers of this kind are not merely speculative. 
Who can determine, what might have been the issue of her late 
convulsions, if the malcontents had been headed by a Csesar 
or by a Cromwell? Who can predict, what effect a despotism, 
established in Massachusetts, would have upon the liberties of 
New Hampshire or Rhode Island ; of Connecticut or New York? 

The inordinate pride of State importance has suggested to 
some minds an objection to the principle of a guaranty in the 
Federal Government, as involving an officious interference in 
the domestic concerns of the members. A scruple of this kind 
would deprive us of one of the principal advantages to be ex- 
pected from Union ; and can only flow from a misapprehension 
of the nature of the provision itself. It could be no impediment 
to reforms of the State Constitutions by a majority of the 
People, in a legal and peaceable mode. This right would re- 
main undiminished. The guaranty could only operate against 
changes to be effected by violence. Towards the prevention of 
calamities of this kind, too many checks cannot be provided. 
The peace of society, and the stability of Government, depend 
absolutely on the efficacy of the precautions adopted on this 
head. Where the whole power of the Government is in the 
hands of the People, there is the less pretence for the use of 
violent remedies, in partial or occasional distempers of the 
State. The natural cure for an ill-administration, in a popular 
or representative Constitution, is a change of men. A guaranty 
by the National authority would be as much levelled against 



DEFECTS OF THE CONFEDERATION 91 

the usurpations of rulers, as against the ferments and outrages 
of faction and sedition in the community. 

The principle of regulating the contributions of the States 
to the common treasury by quotas is another fundamental 
error in the Confederation. Its repugnancy to an adequate 
supply of the National exigencies has been already pointed out, 
and has sufficiently appeared from the trial which has been 
made of it. I speak of it now solely with a view to equahty 
among the States. Those who have been accustomed to 
contemplate the circumstances which produce constitutional 
wealth, must be satisfied that there is no common standard 
or barometer, by which the degrees of it can be ascertained. 
Neither the value of lands, nor the numbers of the People, 
which have been successively proposed as the rule of State 
contributions, has any pretension to being a just representa- 
tive. If we compare the wealth of the United Netherlands with 
that of Russia or Germany, or even of France; and if we at 
the same time compare the total value of the lands and the 
aggregate population of that contracted district with the total 
value of the lands and the aggregate population of the immense 
regions of either of the three last-mentioned countries, we shall 
at once discover, that there is no comparison between the 
proportion of either of these two objects, and that of the rela- 
tive wealth of those nations. If the like parallel were to be run 
between several of the American States, it would furnish a like 
result. Let Virginia be contrasted with North Carolina, Penn- 
sylvania with Connecticut, or Maryland with New Jersey, and 
we shall be convinced that the respective abilities of those 
States, in relation to revenue, bear little or no analogy to their 
comparative stock in lands or to their comparative population. 
The position may be equally illustrated by a similar process 
between the counties of the same State. No man who is 
acquainted with the State of New York will doubt that the 
active wealth of King's County bears a much greater propor- 
tion to that of Montgomery, than it would appear to be, if we 
should take either the total value of the lands, or the total 
numbers of the People, as a criterion! 



92 THE FORMATION OF CONSTITUTIONS 

The wealth of nations depends upon an infinite variety of 
causes. Situation, soil, climate, the nature of the productions, 
the nature of the Government, the genius of the citizens, the 
degree of information they possess, the state of commerce, 
of arts, of industry, these circumstances, and many more, too 
complex, minute, or adventitious, to admit of a particular 
specification, occasion differences hardly conceivable in the 
relative opulence and riches of different countries. The conse- 
quence clearly is, that there can be no common measure of 
National wealth; and, of course, no general or stationary rule, 
by which the ability of a State to pay taxes can be determined. 
The attempt, therefore, to regulate the contributions of the 
members of a Confederacy by any such rule, cannot fail to be 
productive of glaring inequality and extreme oppression. 

This inequality would of itself be sufficient in America to 
work the eventual destruction of the Union, if any mode of 
enforcing a compliance with its requisitions could be devised. 
The suffering States would not long consent to remain associ- 
ated upon a principle which distributes the public burdens 
with so unequal a hand, and which was calculated to impov- 
erish and oppress the citizens of some States, while those of 
others would scarcely be conscious of the small proportion 
of the weight they were required to sustain. This, however, 
is an evil inseparable from the principle of quotas and requisi- 
tions. . . . 



CHAPTER XI 

ORIGIN OF THE FEDERAL CONVENTION 

The train of events leading up to the Annapolis and Philadelphia 
Conventions is described by Madison in the sketch which he wrote as a 
preface to his notes on the debates in the Convention of 1787. So far as 
its immediate purposes were concerned, the Annapolis meeting was a 
fiasco ; but the report drafted by Hamilton went far to redeem the situa- 
tion. It should be noted that the movement for a betterment of federal 
relations had proceeded outside of Congress and without its sanction. 
Madison, Hamilton, and their associates were really planning a coup 
d'etat. They urged a meeting of delegates from the States without refer- 
ring to Congress, and then had the audacity to send a copy of their report 
to Congress "from motives of respect." It is also noteworthy that when 
Congress yielded to pressure from without and called a convention at the 
time and place named in the report, it never once alluded to the Annapolis 
Convention. The difficulties which confronted the delegates in the Phila- 
delphia Convention are graphically described by Madison in the Federalist. 

28. Antecedents of the Annapolis Convention.^ 

Having served as a member of Congs. through the period 
between Mar. 1780 & the arrival of peice in 1783, 1 had become 
intimately acquainted with the public distresses and the 
causes of them. I had observed the successful — opposition 
to every attempt to procure a remedy by new grants of power 
to Congs, I had found moreover that despair of success hung 
over the compromising provision for the public necessities of 
April 1783 which had been so elaborately planned and so 
impressively recommended to the States. Sympathizing, under 
this aspect of affairs, in the alarm of the friends of free Govt, 
at the threatened danger of an abortive result to the great & 
perhaps last experiment in its favour, I could not be insensible 
to the obligation to co-operate as far as I could in averting the 
calamity. With this view I acceded to the desire of my fellow 
Citizens of the County that I should be one of its representa- 

^ James Madison, Preface to Debates in the Convention of 1787, printed 
in Farrand's Records of the Federal Convention, ni, 543-45. 



94 THE FORMATION OF CONSTITUTIONS 

tives in the Legislature, hoping that I might there best con- 
tribute to inculcate the critical posture to which the Revolu- 
tionary cause was reduced, and the merit of a leading agency 
of the State in bringing about a rescue of the Union and the 
blessings of liberty staked on it, from an impending catas- 
trophe. 

It required but little time after taking my seat in the House 
of Delegates in May 1784. to discover that however favorable 
the general disposition of the State might be towards the Con- 
federacy the Legislature retained the aversion of its prede- 
cessors to transfers of power from the State to the Govt, of the 
Union; notwithstanding the urgent demands of the Federal 
Treasury; the glaring inadequacy of the authorized mode of 
supplying it, the rapid growth of anarchy in the Fedl. System, 
and the animosity kindled among its members by their con- 
flicting regulations. . . 

The failure however of the varied propositions in the Legis- 
lature for enlarging the powers of Congress, the continued 
failure of the efforts of Congs. to obtain from them the means 
of providing for the debts of the Revolution; and of counter- 
vailing the commercial laws of G. B, a source of much irrita- 
tion & agst. which the separate efforts of the States were found 
worse than abortive; these Considerations with the Hghts 
thrown on the whole subject, by the free & full discussion it 
had undergone led to a general acquiescence in the Resoln. 
passed, on the 21. of Jany. 1786. which proposed & invited a 
meeting of Deputies from all the States to insert the Resol 
(See Journal.) i. 

The resolution had been brought forward some weeks before 
on the failure of a proposed grant of power to Congress to col- 
lect a revenue from commerce, which had been abandoned by 
its friends in consequence of material alterations made in the 
grant by a Committee of the whole. The Resolution tho, intro- 
duced by Mr. Tyler an influencial member, who having never 
served in Congress, had more the ear of the House than those 
whose services there exposed them to an imputable bias, was so 
little acceptable that it was not then persisted in. Being now 



ORIGIN OF FEDERAL CONVENTION 95 

revived by him, on the last day of the Session, and being the 
alternative of adjourning without any effort for the crisis in the 
affairs of the Union, it obtained a general vote; less however 
with some of its friends from a confidence in the success of 
the experiment than from a hope that it might prove a step to a 
more comprehensive & adequate provision for the wants of the 
Confederacy. 

It happened also that Commissioners who had been ap- 
pointed by Virga. & Maryd. to settle the jurisdiction on waters 
dividing the two States had, apart from their official reports, 
recommended a uniformity in the regulations of the 2 States 
on several subjects & particularly on those having relation to 
foreign trade. It appeared at the same time that Maryd. had 
deemed a concurrence of her neighbors Pena — & Delaware 
indispensable in such a case, who for Uke reasons would require 
that of their neighbors. So apt and forceable an illustration of 
the necessity of a uniformity throughout all the States, could 
not but favour the passage of a Resolution which proposed a 
Convention having that for its object. 

The commissioners appointed by the Legisl : & who attended 
the Convention were E. Randolph the Attorney of the State, 
St. Geo: Tucker & J. M. The designation of the time & place 
for its meeting to be proposed and communicated to the States 
having been left to the Comrs: they named for the time early 
September and for the place the City of Annapolis avoiding the 
residence of Congs. and large Commercial Cities as liable to 
suspicions of an extraneous influence. 

Altho the invited Meeting appeared to be generally favored, 
five States only assembled; some failing to make appointments, 
and some of the individuals appointed not hastening their 
attendance, the result in both cases being ascribed mainly, to a 
beUef that the time had not arrived for such a political reform, 
as might be expected from a furttier experience of its necessity. 

But in the interval between the proposal of the Convention 
and the time of its meeting such had been the advance of public 
opinion in the desired direction, stimulated as it had been by 
the effect of the contemplated object of the meeting, in turning 



96 THE FORMATION OF CONSTITUTIONS 

the general attention to the Critical State of things, and in 
calHng forth the sentiments and exertions of the most enhght- 
ened & infiuencial patriots, that the Convention thin as it was 
did not scruple to decline the limited task assigned to it, and to 
recommend to the States a Convention with powers adequate 
to the occasion; nor was it unnoticed that the commission of 
the N. Jersey Deputation, had extended its object to a general 
provision for exigencies of the Union. A recommendation for 
this enlarged purpose was accordingly reported by a Come, to 
whom the subject had been referred. It was drafted by Col: 
H. and finally agreed to unanimously in the following form. 

29. Report of the Annapolis Convention.^ 

To the Honorable the Legislatures of Virginia, Delaware, 
Pennsylvania, New Jersey, and New York, the commissioners 
from the said states respectively, assembled at Annapolis, 
humbly beg leave to report, — 

That, pursuant to their several appointments, they met at 
Annapolis in the state of Maryland, on the nth day of Sep- 
tember instant; and having proceeded to a communication of 
their powers, they found that the states of New York, Pennsyl- 
vania, and Virginia, had, in substance, and nearly in the same 
terms, authorized their respective commissioners "to meet 
such commissioners as were or might be appointed by the other 
states in the Union, at such time and place as should be agreed 
upon by the said commissioners, to take into consideration the 
trade and commerce of the United States ; to consider how far 
a uniform system in their commercial intercourse and regula- 
tions might be necessary to their common interest and perma- 
nent harmony; and to report to the several states such an act 
relative to this great object as, when unanimously ratified by 
them, would enable the United States in Congress assembled 
effectually to provide for the same." 

That the state of Delaware had given similar powers to their 
commissioners, with this difference only, that the act to be 

^ September 14, 1786, Elliot, Debates in the Several State Conventions 
on the Adoption of the Federal Constitution (1866), i, 117-18. 



ORIGIN OF FEDERAL CONVENTION 97 

framed in virtue of these powers is required to be reported 
"to the United States in Congress assembled, to be agreed to 
by them, and confirmed by the legislatures of every state." 

That the state of New Jersey had enlarged the object of their 
appointment, empowering their commissioners "to consider 
how far a uniform system in their commercial regulations and 
other important matters might be necessary to the common 
interest and permanent harmony of the several states " ; and to 
report such an act on the subject as, when ratified by them, 
"would enable the United States in Congress assembled effect- 
ually to provide for the exigencies of the Union." 

That appointments of commissioners have also been made 
by the states of New Hampshire, Massachusetts, Rhode 
Island, and North Carolina, none of whom, however, have 
attended ; but that no information has been received, by your 
commissioners, of any appointment having been made by the 
states of Connecticut, Maryland, South Carolina, or Georgia, 

That the express terms of the powers to your commissioners 
supposing a deputation from all the states, and having for 
object the trade and commerce of the United States, your 
commissioners did not conceive it advisable to proceed on the 
business of their mission under the circumstance of so partial 
and defective a representation. 

Deeply impressed, however, with the magnitude and import- 
ance of the object confided to them on this occasion, your com- 
missioners cannot forbear to indulge an expression of their 
earnest and unanimous wish, that speedy measures may be 
taken to effect a general meeting of the states, in a future con- 
vention, for the same and such other purposes as the situation 
of public affairs may be found to require. 

If, in expressing this wish, or in intimating any other senti- 
ment, your commissioners should seem to exceed the strict 
bounds of their appointment, they entertain a full confidence 
that a conduct dictated by an anxiety for the welfare of the 
United States will not fail to receive an indulgent construction. 

In this persuasion your commissioners submit an opinion, 
that the idea of extending the powers of their deputies to other 



98 THE FORMATION OF CONSTITUTIONS 

objects than those of commerce, which has been adopted by 
the state of New Jersey, was an improvement on the original 
plan, and will deserve to be incorporated into that of a future 
convention. They are the more naturally led to this conclusion, 
as, in the course of their reflections on the subject, they have 
been induced to think that the power of regulating trade is of 
such comprehensive extent, and will enter so far into the gen- 
eral system of the federal government, that, to give it efl&cacy, 
and to obviate questions and doubts concerning its precise 
nature and limits, may require a correspondent adjustment of 
other parts of the federal system. . . . 

Under this impression, your commissioners, with the most 
respectful deference, beg leave to suggest their unanimous con- 
viction, that it may essentially tend to advance the interests of 
the Union, if the states, by whom they have been respectively 
delegated, would themselves concur, and use their endeavors to 
procure the concurrence of the other states, in the appointment 
of commissioners, to meet at Philadelphia on the second Mon- 
day in May next, to take into consideration the situation of the 
United States, to devise such further provisions as shall appear 
to them necessary to render the constitution of the federal 
government adequate to the exigencies of the Union ; and to 
report such an act for that purpose to the United States in 
Congress assembled, as, when agreed to by them, and after- 
wards confirmed by the legislatures of every state, will effect- 
ually provide for the same. 

Though your commissioners could not with propriety address 
these observations and sentiments to any but the states they 
have the honor to represent, they have nevertheless concluded, 
from motives of respect, to transmit copies of this report to the 
United States in Congress assembled, and to the executive of 
the other states. 

30. Call for the Constitutional Convention} 

Whereas there is provision, in the Articles of Confederation 
and Perpetual Union, for making alterations therein, by the 
^ February 21, 1787. Elliot, Debates, i, 120. 



ORIGIN OF FEDERAL CONVENTION 99 

assent of a Congress of the United States, and of the legisla- 
tures of the several states; and whereas experience hath evinced 
that there are defects in the present Confederation ; as a mean 
to remedy which, several of the states, and particularly the 
state of New York, by express instructions to their delegates 
in Congress, have suggested a convention for the purposes 
expressed in the following resolution; and such convention 
appearing to be the most probable mean of establishing in 
these states a firm national government, — 

Resolved, That, in the opinion of Congress, it is expedient 
that, on the second Monday in May next, a convention of 
delegates, who shall have been appointed by the several states, 
be held at Philadelphia, for the sole and express purpose of 
revising the Articles of Confederation, and reporting to Con- 
gress and the several legislatures such alterations and pro- 
visions therein as shall, when agreed to in Congress, and con- 
firmed by the states, render the federal Constitution adequate 
to the exigencies of government and the preservation of the 
Union. 

31. Difficulties encountered by the Convention} 

Among the difficulties encountered by the convention a 
very important one must have lain in combining the requisite 
stability and energy in government with the inviolable atten- 
tion due to liberty and to the republican form. Without sub- 
stantially accomplishing this part of their undertaking, they 
would have very imperfectly fulfilled the object of their 
appointment or the expectation of the public ; yet that it could 
not be easily accomplished will be denied by no one who is 
unwilling to betray his ignorance of the subject. . . . 

Not less arduous must have been the task of marking the 
proper line of partition between the authority of the general 
and that of the State governments. Every man will be sensible 
of this difficulty, in proportion as he has been accustomed to 
contemplate and discriminate objects extensive and compli- 
cated in their nature. . . . 

^ Federalist (Ford ed.), No, 37 passim. 



loo THE FORMATION OF CONSTITUTIONS 

Experience has instructed us that no skill in the science of 
government has yet been able to discriminate and define, with 
sufficient certainty, its three great provinces — the legislative, 
executive, and judiciary; or even the privileges and powers of 
the different legislative branches. Questions daily occur in the 
course of practice, which prove the obscurity which reigns in 
these subjects, and which puzzle the greatest adepts in political 
science. . . . 

Besides the obscurity arising from the complexity of objects, 
and the imperfection of the human faculties, the medium 
through which the conceptions of men are conveyed to each 
other adds a fresh embarrassment. The use of words is to 
express ideas. Perspicuity, therefore, requires not only that 
the ideas should be distinctly formed, but that they should be 
expressed by words distinctly and exclusively appropriate to 
them. But no language is so copious as to supply words and 
phrases for every complex idea or so correct as not to include 
many, equivocally denoting different ideas. . . . 

Here, then, are three sources of vague and incorrect defini- 
tions: indistinctness of the object, imperfection of the organ 
of conception, inadequateness of the vehicle of its obscurity. 
The convention, in delineating the boundary between the 
federal and State jurisdictions, must have experienced the full 
effect of them all. 

To the difficulties already mentioned may be added the 
interfering pretensions of the larger and smaller States. We 
cannot err in supposing that the former would contend for a 
participation in the government fully proportioned to their 
superior wealth and importance; and that the latter would not 
be less tenacious of the equality at present enjoyed by them. 
We may well suppose that neither side would entirely yield to 
the other, and consequently that the struggle could be term- 
inated only by compromise. It is extremely probable, also, 
that after the ratio of representation had been adjusted, this 
very compromise must have produced a fresh struggle between 
the same parties, to give such a turn to the organization of 
the government, and to the distribution of its powers, as would 



ORIGIN OF FEDERAL CONVENTION loi 

increase the importance of the branches, in forming which 
they had respectively obtained the greatest share of influence. 
There are features in the Constitution which warrant each of 
these suppositions; and as far as either of them is well founded, 
it shows that the convention must have been compelled to sac- 
rifice theoretical propriety to the force of extraneous consider- 
ations. 

Nor could it have been the large and small States only, 
which would marshal themselves in opposition to each other 
on various points. Other combinations, resulting from a differ- 
ence of local position and policy, must have created additional 
difficulties. As every State may be divided into different dis- 
tricts, and its citizens into different classes, which give birth to 
contending interests and local jealousies, so the different parts 
of the United States are distinguished from each other by a 
variety of circumstances, which produce a like effect on a 
larger scale. And although this variety of interests, for reasons 
sufficiently explained in a former paper, may have a salu- 
tary influence on the administration of the government when 
formed, yet everyone must be sensible of the contrary influence, 
which must have been experienced in the task of forming it. 

Would it be wonderful if, under the pressure of all these 
difficulties, the c^r.vention should have been forced into some 
deviations from that artificial structure and regular symmetry 
which an abstract view of the subject might lead an ingenious 
theorist to bestow on a Constitution planned in his closet or 
in his imagination? The real wonder is that so many difficul- 
ties should have been surmounted, and surmounted with a 
unanimity almost as unprecedented as it must have been 
unexpected. 



CHAPTER XII 

THE CONSTITUTIONAL CONVENTION OF 1 787 " 

A.T vv.o^_5^^^^j^ Delay in the arrival of the delegates at Philadelphia prevented the 
formal organization of the Convention until May 2% when twenty-seven 
delegates from seven States presented themselves with their credentials. 
The credentials of the Maryland delegates are typical of all. Altogether, 
though not at any one time, there were in attendance fifty-five delegates 
from twelve States. Rhode Island was never represented. Simple rules 
of procedure were adopted. Perhaps the most important were those which 
provided that each State should have a single vote and that the discus- 
sions should be carried on in secrecy. The resolutions presented by Ran- 
dolph were in reality the work of the Virginia delegation. They served 
as a basis for the deliberations of the Convention. Their general trend 
was toward the establishment of a national government, and they had 
the support for the most part of the large States. It was by way of protest 
that Paterson, of New Jersey, offered his plan, which was described as 
"purely federal." This New Jersey plan found general favor with the 
small States. The inability of the large and small States to agree upon the 
constitution of the two houses of the federal legislature led to the appoint- 
ment of a grand committee of one delegate from each State. The recom- 
mendations of this committee, commonly known as " the great compro- 
mise," were eventually adopted by the Convention. This compromise 
did, in fact, make possible the further work of the Convention, but it is 
only one of many compromises which made the Constitution. 

32. Opening Session of the Federal Convention.'^ 

In foederal- Convention. 
On Monday the 14th of May. A.D. 1787. and in the eleventh 
year of the independence of the United States of America, 
at the State-House in the city of Philadelphia — in virtue of 
appointments from their respective States, sundry Deputies 
to the foederal-Convention appeared — but, a majority of the 
States not being represented, the Members present adjourned 
from day to day until friday the 25th of the said month, when, 
in virtue of the said appointments appeared from the States of 
(names omitted) ... ^ 

^ Journal in Farrand's Records of the Federal Convention, i, 1-2. 



CONSTITUTIONAL CONVENTION, 1787 103 

In foederal- Convention Friday May 25. 1787.- 
It was moved by the honorable Robert Morris Esquire, One 
of the Deputies from Pennsylvania, that a President be elected 
by ballot, which was agreed to — and thereupon he nominated, 
on the part of the said State, 

His Excellency George Washington Esquire 
The Members then proceeded to ballot on behalf of their re- 
spective States — and, the ballots being taken, it appeared 
that the said George Washington was unanimously elected — 
and he was conducted to the chair by 

The honorable Robert Morris, and John Rutledge 
Esquires. The President then proposed to the House that they 
should proceed to the election of a Secretary — and, the bal- 
lots being taken, it appeared that 

William Jackson Esquire was elected. 
The following credentials were produced and read — 

[Be it enacted by the General Assembly of Maryland, That 
the Hon. James M'Henry, Daniel of St. Thomas Jenifer, 
Daniel Carroll, John Francis Mercer, and Luther Martin, 
Esqrs., be appointed and authorized, on behalf of this state, 
to meet such deputies as may be appointed and authorized, 
by any other of the United States, to assemble in Convention 
at Philadelphia, for the purpose of revising the federal system, 
and to join with them in considering such alterations and fur- 
ther provisions as may be necessary to render the Federal Con- 
stitution adequate to the exigencies of the Union; and in 
reporting such an act for that purpose, to the United States in 
Congress assembled, as, when agreed to by them, and duly 
confirmed by the several states, will effectually provide for the 
same; and the said deputies, or such of them as shall attend the 
said Convention, shall have full power to represent this state 
for the purposes aforesaid ; and the said deputies are hereby 
directed to report the proceedings of the said Convention, and 
any act agreed to therein, to the next session of the General 
Assembly of this state.]^ 

^ The credentials of the delegates are not inserted in the Journal. The 
above is taken from Elliot's Debates, i, 131. 



104 THE FORMATION OF CONSTITUTIONS 

The House then appointed Nicholas Weaver Messenger, 
and Joseph Fry Door-Keeper. 

On motion of Mr. C. Pinckney — ordered that a Committee 
be appointed to draw up rules to be observed as the standing 
Orders of the Convention — and to report the same to the 
House. — a Committee by ballot was appointed of 

Mr. Wythe, Mr. Hamilton, and Mr. Pinckney. 
And then the House adjourned 'till monday next at lo o'clock 
A.M. 

33. The Randolph Resolutions} 

1. Resolved that the articles of Confederation ought to be 
so corrected & enlarged as to accompHsh the objects proposed 
by their institution; namely, "common defence, security of 
liberty and general welfare." 

2. Resd. therefore that the rights of suffrage in the National 
Legislature ought to be proportioned to the Quotas of contrib- 
ution, or to the number of free inhabitantSj as the one or the 
other rule may seem best in different cases. 

3. Resd. that the National Legislature ought to consist of 
two branches. 

4. Resd. that the members of the first branch of the National 
Legislature ought to be elected by the people of the several 
States every for the term of ; to be of the age of 

years at least, to receive liberal stipends by which they 
may be compensated for the devotion of their time to public 
service ; to be ineligible to any office established by a particular 
State, or under the authority of the United States, except those 
peculiarly belonging to the functions of the first branch, during 
the term of service, and for the space of after its expiration ; 

to be incapable of re-election for the space of after the 

expiration of their term of service, and to be subject to recall. 

5. Resold, that the members of the second branch of the 
National Legislature ought to be elected by those of the first, 
out of a proper number of persons nominated by the individual 
Legislatures, to be of the age of years at least; to hold 

^ May 29, 1787. Farrand, Records of the Federal Convention, i, 20-22. 



CONSTITUTIONAL CONVENTION, 1787 105 

their offices for a term sufficient to ensure their independency, 
to receive Hberal stipends, by which they may be compensated 
for the devotion of their time to public service; and to be ineli- 
gible to any office established by a particular -State, or under 
the authority of the United States, except those pecuHarly 
belonging to the functions of the second branch, during the 
term of service, and for the space of after the expiration 

thereof. 

6. Resolved that each branch ought to possess the right of 
originating Acts; that the National Legislature ought to be 
empowered to enjoy the Legislative Rights vested in Congress 
by the Confederation & moreover to legislate in all cases to 
which the separate States are incompetent, or in which the 
harmony of the United States may be interrupted by the exer- 
cise of individual Legislation; to negative all laws passed by 
the several States, contravening in the opinion of the National 
Legislature the articles of the Union ; and to call forth the force 
of the Union agst. any member of the Union failing to fulfill its 
duty under the articles thereof. 

7. Resd. that a National Executive be instituted; to be 
chosen by the National Legislature for the term of years, 
to receive punctually at stated times, a fixed compensation for 
the services rendered, in which no increase or diminution shall 
be made so as to affect the Magistracy, existing at the time of 
increase or diminution, and to be ineligible a second time; and 
that besides a general authority to execute the National laws, 
it ought to enjoy the Executive rights vested in Congress by 
the Confederation. 

8. Resd. that the Executive and a convenient number of the 
National Judiciary, ought to compose a council of revision 
with authority to examine every act of the National Legisla- 
ture before it shall operate, & every act of a particular Legis- 
lature before a Negative thereon shall be final; and that the 
dissent of the said Council shall amount to a rejection, unless 
the Act of the National Legislature be again passed, or that of 
a particular Legislature be again negatived by of the 
members of each branch. 



io6 THE FORMATION OF CONSTITUTIONS 

9. Resd. that a National Judiciary be established to consist 
of one or more supreme tribunals, and of inferior tribunals to be 
chosen by the National Legislature, to hold their offices during 
good behavior ; and to receive punctually at stated times fixed 
compensation for their services, in which no increase or di- 
minution shall be made so as to affect the persons actually in 
office at the time of such increase or diminution, that the 
jurisdiction of the inferior tribunals shall be to hear & determ- 
ine in the first instance, and of the supreme tribunal to hear 
and determine in the dernier resort, all piracies & felonies on 
the high seas, captures from an enemy; cases in which foreign- 
ers or citizens of other States applying to such jurisdictions may 
be interested, or which respect the collection of the National 
revenue; impeachments of any National officers, and questions 
which may involve the national peace and harmony. 

10. Resolvd. that provision ought to be made for the admis- 
sion of States lawfully arising within the limits of the United 
States, whether from a voluntary junction of Government & 
Territory or otherwise, with the consent of a number of voices 
in the National legislature less than the whole. 

11. Resd. that a Republican Government & the territory 
of each State, except in the instance of a voluntary junction of 
Government & territory, ought to be guaranteed by the United 
States to each State. 

12. Resd. that provision ought to be made for the continu- 
ance of Congress and their authorities and privileges, until a 
given day after the reform of the articles of Union shall be 
adopted, and for the completion of all their engagements. 

13. Resd. that provision ought to be made for the amend- 
ment of the Articles of Union whensoever it shall seem neces- 
sary, and that the assent of the National Legislature ought not 
to be required thereto. 

14. Resd. that the Legislative Executive & Judiciary pow- 
ers within the several States ought to be bound by oath to 
support the articles of Union. 

15. Resd. that the amendments which shall be offered to the 
Confederation, by the Convention ought at a proper time, or 



CONSTITUTIONAL CONVENTION, 1787 107 

times, after the approbation of Congress to be submitted to an 
assembly or assemblies of Representatives, recommended by 
the several Legislatures to be expressly chosen by the people, 
to consider & decide thereon. 

34. The Pater son Resolutions.^ 

1. Resd. that the articles of Confederation ought to be so 
revised, corrected & enlarged, as to render the federal Consti- 
tution adequate to the exigencies of Government, & the preserv- 
ation of the Union. 

2. Resd. that in addition to the powers vested in the U. 
States in Congress, by the present existing articles of Confed- 
eration, they be authorized to pass acts for raising a revenue, 
by levying a duty or duties on all goods or merchandizes of 
foreign growth or manufacture, imported into any part of the 
U. States, by Stamps on paper, vellum or parchment, and by a 
postage on all letters or packages passing through the general 
post-Office, to be applied to such federal purposes as they shall 
deem proper & expedient ; to make rules & regulations for the 
collection thereof; and the same from time to time, to alter & 
amend in such manner as they shall think proper : to pass Acts 
for the regulation of trade & commerce as well wdth foreign 
nations as with each other: provided that all punishments, 
fines, forfeitures & penalties to be incurred for contravening 
such acts rules and regulations shall be adjudged by the Com- 
mon law Judiciary s of the State in which any offence contrary 
to the true intent & meaning of such Acts rules & regulations 
shall have been committed or perpetrated, with liberty of com- 
mencing in the first instance all suits & prosecutions for that 
purpose in the superior Common law Judiciary in such State, 
subject nevertheless, for the correction of all errors, both in* 
law & fact in rendering judgment, to an appeal to the Judiciary 
of the U. States. 

3. Resd. that whenever requisitions shall be necessary, in- 
stead of the rule for making requisitions mentioned in the 
articles of Confederation, the United States in Congs. be 
_ ^ June 15, 1787. Farrand, Records of the Federal Convention, i, 242-45. 



io8 THE FORMATION OF CONSTITUTIONS 

authorized to make such requisitions in proportion to the whole 
number of white & other free citizens & inhabitants of every 
age sex and condition including those bound to servitude for 
a term of years & three fifths of all other persons not compre- 
hended in the foregoing description, except Indians not paying 
taxes; that if such requisitions be not complied with, in the 
time specified therein, to direct the collection thereof in the 
non complying States & for that purpose to devise and pass 
acts directing & authorizing the same ; provided thatnone of the 
powers hereby vested in the U. States in Congs. shall be exer- 
cised without the consent of at least States, and in that 
proportion if the number of Confederated States should here- 
after be increased or diminished. 

4. Resd. that the U. States in Congs. be authorized to elect 
a federal Executive to consist of persons, to continue in 
office for the term of years, to receive punctually at 
stated times a fixed compensation for their services, in which 
no increase or diminution shall be made so as to affect the per- 
sons composing the Executive at the time of such increase or 
diminution, to be paid out of the federal treasury; to be incap- 
able of holding any other office or appointment during their 
time of service and for years thereafter ; to be ineligible a 
second. time, & removeableby Congs. on application by a ma- 
jority of the Executives of the several States ; that the Execu- 
tives besides their general authority to execute the federal acts 
ought to appoint all federal officers not otherwise provided for, 
& to direct all military operations; provided that none of the 
persons composing the federal Executive shall on any occasion 
take command of any troops, so as personally to conduct any 
enterprise as General, or in other capacity. 

5. Resd. that a federal Judiciary be estabHshed to consist 
of a supreme Tribunal the Judges of which to be appointed by 
the Executive, & to hold their offices during good behavior, to 
receive punctually at stated times a fixed compensation for 
their services in which no increase or diminution shall be made, 
so as to affect the persons actually in office at the time of such 
increase or diminution; that the Judiciary so established shall 



' CONSTITUTIONAL CONVENTION, 1787 109 

have authority to hear & determine in the first instance on all 
impeachments of federal officers, & by way of appeal in the 
dernier resort in all cases touching the rights of Ambassadors, 
in all cases of captures from an enemy, in all cases of piracies 
& felonies on the high seas, in all cases in which foreigners 
may be interested , in the construction of any treaty or treaties, 
or which may arise on any of the Acts for regulation of trade, 
or the collection of the federal Revenue : that none of the Judi- 
ciary shall during the time they remain in Office be capable of 
receiving or holding any other ofiice or appointment during 
their time of service, or for thereafter. 

6. Resd. that all Acts of the U. States in Congs. made by 
virtue & in pursuance of the powers hereby & by the articles 
of confederation vested in them, and all Treaties made & rati- 
fied under the authority of the U. States shall be the supreme 
law of the respective States so far forth as those Acts or 
Treaties shall relate to the said States or their Citizens, and 
that the Judiciary of the several States shall be bound thereby 
in their decisions, any thing in the respective laws of the 
Individual States to the contrary not with standing; and that 
if any State, or any body of men in any State shall oppose or 
prevent ye. carrying into execution such acts or treaties, the 
federal Executive shall be authorized to call forth ye power of 
the Confederate States, or so much thereof as may be necessary 
to enforce and compel an obedience to such Acts, or an Observ- 
ance of such Treaties. 

7. Resd. that provision be made for the admission of new 
States into the Union. 

8. Resd. the rule for naturalization ought to be the same in 
every State. 

9. Resd. that a Citizen of one State committing an offence 
in another State of the Union, shall be deemed guilty of the 
same offence as if it had been committed by a Citizen of the 
State in which the Offence was committed. 



no THE FORMATION OF CONSTITUTIONS 

35. The Great Compromise} 

The grand committee met. Mr. Gerry was chosen chairman. 

The committee proceeded to consider in what manner they 
should discharge the business with which they were entrusted. 
By the proceedings in the convention they were so equally 
divided on the important question of representation in the two 
branches, that the idea of a conciliatory adjustment must have 
been in contemplation of the house in the appointment of this 
committee. But still how to effect this salutary purpose was 
the question. Many of the members, impressed with the utility 
of a general government, connected with it the indispensible 
necessity of a representation from the states according to their 
numbers and wealth; while others, equally tenacious of the rights 
of the states, would admit of no other representation but such 
as was strictly federal, or in other words, equality of suffrage. 
This brought on a discussion of the principles on which the 
house had divided, and a lengthy recapitulation of the argu- 
ments advanced in the house in support of these opposite 
propositions. As I had not openly explained my sentiments on 
any former occasion on this question, but constantly in giving 
my vote, showed my attachment to the national government on 
federal principles, I took this occasion to explain my motives — 
{see a copy of my speech hereunto annexed.) 

These remarks gave rise to a motion of Dr. Franklin, which 
after some modification was agreed to, and made the basis of 
the following report to the committee. 

The committee to whom was referred the eighth resolution, 
reported from the committee of the whole house, and so much 
of the seventh as had not been decided on, submit the following 
report: 

That the subsequent propositions be recommended to the 
convention, on condition that both shall be generally adopted. 

That in the first branch of the legislature, each of the states 
now in the union, be allowed one member for every 40,000 

^ Yates's Notes, July 3, 1787. Farrand, Records of the Federal Conven- 
tion, I, 522-23. 



CONSTITUTIONAL CONVENTION, 1787 in 

inhabitants, of the description reported in the seventh resolu- 
tion of the committee of the whole house — That each state, 
not containing that nuniber, shall be allowed one member. 

That all bills for raising or apportioning money, and for 
fixing salaries of the officers of government of the United States, 
shall originate in the first branch of the legislature, and shall 
not be altered or amended by the second branch; and that no 
money shall be drawn from the public treasury, but in pursu- 
ance of appropriations to be originated in the first branch. 

That in the second branch of the legislature, each state shall 
have an equal vote. 



CHAPTER XIII 

THE CONSTITUTION OF THE UNITED STATES 

Any attempt to analyze the Constitution in systematic fashion must 
fail, for the simple reason that the Constitution is not a theoretically 
conceived nor a logically drafted document. It was not made by doctrin- 
aires, but by hard-headed men of affairs. They had met to remedy certain 
definite defects in the government set up by the Articles of Confederation. 
For the most part, the remedies which they applied were such as they 
knew by practical experience. They invented little; but they made some 
novel adjustments, and they frequently sacrificed logical completeness 
and precision to practical exigencies. As Professor Dicey well says, a 
federal State is only "a political contrivance intended to reconcile 
national unity and power with the maintenance of state rights." The 
constitution of such a State must inevitably be a "comphcated contract," 
worked out by mutual concessions between the parties concerned. 

36. The Constitution as adopted} 

We the People of the United States, in Order to form a more 
perfect Union, establish Justice, insure domestic Tranquility, 
provide for the common defence, promote the general Wel- 
fare, and secure the Blessings of Liberty to ourselves and our 
Posterity, do ordain and establish this Constitution for 
the United States of America. 

Article I. 

Section, i. All legislative Powers herein granted shall be 
vested in a Congress of the United States, which shall consist 
of a Senate and House of Representatives. 

Section. 2. The House of Representatives shall be composed 
of Members chosen every second Year by the People of the 
several States, and the Electors in each State shall have the 
Qualifications requisite for Electors of the most numerous 
Branch of the State Legislature. 

No Person shall be a Representative who shall not have 
attained to the Age of twenty-five Years, and been seven Years 
^ Revised Statutes oj the United States (1878), 17-27. 



CONSTITUTION OF UNITED STATES 113 

a Citizen of the United States, and who shall not, when elected, 
be an Inhabitant of that State in which he shall be chosen. 

Representatives and direct Taxes shall be apportioned among 
the several States which may be included within this Union, 
according to their respective Numbers, which shall be deter- 
mined by adding to the whole Number of free Persons, includ- 
ing those bound to Service for a Term of Years, and excluding 
Indians not taxed, three fifths of all other Persons. The actual 
Enumeration shall be made within three Years after the first 
Meeting of the Congress of the United States, and within every 
subsequent Term of ten Years, in such Manner as they shall 
by Law direct. The Number of Representatives shall not ex- 
ceed one for every thirty Thousand, but each State shall have 
at Least one Representative ; and until such enumeration shall 
be made, the State of New Hampshire shall be entitled to chuse 
three, Massachusetts eight, Rhode-Island and Providence 
Plantations one, Cormecticut five. New- York six. New Jersey 
four, Pennsylvania eight, Delaware one, Maryland six, Vir- 
ginia ten, North Carolina five. South Carolina five, and Georgia 
three. 

When vacancies happen in the Representation from any 
State, the Executive Authority thereof shall issue Writs of 
Election to fill such Vacancies. 

The House of Representatives shall chuse their Speaker and 
other Officers; and shall have the sole Power of Impeachment. 

Section. 3. The Senate of the United States shall be com- 
posed of two Senators from each State, chosen by the Legislature 
thereof, for six Years; and each Senator shall have one Vote. 

Immediately after they shall be assembled in Consequence of 
the first Election, they shall be divided as equally as may be 
into three Classes. The Seats of the Senators of the first Class 
shall be vacated at the Expiration of the second year, of the 
second Class at the Expiration of the fourth Year, and of the 
third Class at the Expiration of the sixth Year, so that one 
third may be chosen every second Year; and if Vacancies hap- 
pen by Resignation, or otherwise, during the Recess of the 
Legislature of any State, the Executive thereof may make tern- 



114 THE FORA^TION OF CONSTITUTIONS 

porary Appointments until the next Meeting of the Legislature, 
which shall then fill such Vacancies. 

No Person shall be a Senator who shall not have attained to 
the Age of thirty Years, and been nine Years a Citizen of the 
United States, and who shall not, when elected, be an Inhab- 
itant of that State for which he shall be chosen. 

The Vice President of the United States shall be President 
of the Senate, but shall have no Vote, unless they be equally 
divided. 

The Senate shall chuse their other Officers, and also a Presi- 
dent pro tempore, in the Absence of the Vice President, or when 
he shall exercise the Office of President of the United States. 

. The Senate shall have the sole Power to try all Impeach- 
ments. When sitting for that Purpose, they shall be on Oath or 
Affirmation. When the President of the United States is tried, 
the Chief Justice shall preside : And no Person shall be convicted 
without the Concurrence of two thirds of the Members present. 

Judgment in Cases of Impeachment shall not extend further 
than to removal from Office, and disqualification to hold and 
enjoy any Office of honor. Trust or Profit under the United 
States: but the Party convicted shall nevertheless be liable 
and subject to Indictment, Trial, Judgment and Punishment, 
according to Law. 

Section. 4. The Times, Places and Manner of holding Elec- 
tions for Senators and Representatives, shall be prescribed in 
each State by the Legislature thereof; but the Congress may at 
any time by Law make or alter such Regulations, except as to 
the Places of chusing Senators. 

The Congress shall assemble at least once in every Year, and 
such Meeting shall be on the first Monday in December, unless 
they shall by Law appoint a different Day. 

Section. 5. Each House shall be the Judge of the Elections, 
Returns and QuaHfications of its own Members, and a Majority 
of each shall constitute a Quorum to do Business ; but a smaller 
Number may adjourn from day to day, and may be authorized 
to compel the Attendance of absent Members, in such Manner, 
and under such Penalties as each House may provide. 



CONSTITUTION OF UNITED STATES 115 

Each House may determine the Rules of its Proceedings, 
punish its Members for disorderly Behavior, and, with the Con- 
currence of two thirds, expel a Member, 

Each House shall keep a Journal of its Proceedings, and from 
time to time publish the same, excepting such Parts as may in 
their Judgment require Secrecy; and the Yeas and Nays of the 
Members of either House on any question shall, at the Desire of 
one fifth of those present, be entered on the Journal. 

Neither House, during the Session of Congress, shall, without 
the Consent of the other, adjourn for more than three days, nor 
to any other Place than that in which the two Houses shall be 
sitting. 

Section. 6. The Senators and Representatives shall receive 
a Compensation for their Services, to be ascertained by Law, 
and paid out of the Treasury of the United States. They shall 
in all Cases, except Treason, Felony and Breach of the Peace, 
be privileged from Arrest during their Attendance at the Ses- 
sion of their respective Houses, and in going to and returning 
from the same; and for any Speech or Debate in either House, 
they shall not be questioned in any other Place. 

No Senator or Representative shall, during the Time for 
which he was elected, be appointed to any civil Office under the 
Authority of the United States, which shall have been created, 
or the Emoluments whereof shall have been encreased during 
such time; and no Person holding any Office under the United 
States, shall be a Member of either House during his Continu- 
ance in Office. 

Section. 7. All Bills for raising Revenue shall originate in 
the House of Representatives; but the Senate may propose or 
concur with Amendments as on other Bills. 

Every Bill which shall have passed the House of Representa- 
tives and the Senate, shall, before it become a Law, be pre- 
sented to the President of the United States; If he approve he 
shall sign it, but if not he shall return it, with his Objections 
to that House in which it shall have originated, who shall enter 
the Objections at large on their Journal, and proceed to recon- 
sider it. If after such Reconsideration two thirds of that House 



ii6 THE FORMATION OF CONSTITUTIONS 

shall agree to pass the Bill, it shall be sent, together with the 
Objections, to the other House, by which it shall likewise be 
reconsidered, and if approved by two thirds of that House, it 
shall become a Law. But in all such Cases the Votes of both 
Houses shall be determined by Yeas and Nays, and the Names 
of the Persons voting for and against the Bill shall be entered 
on the Journal of each House respectively. If any Bill shall 
not be returned by the President within ten Days (Sundays 
excepted) after it shall have been presented to him, the Same 
shall be a law, in like Manner as if he had signed it, unless the 
Congress by their Adjournment prevent its Return, in which 
Case it shall not be a Law. 

Every Order, Resolution, or Vote to which the Concurrence 
of the Senate and House of Representatives may be necessary 
(except on a question of Adjournment) shall be presented to the 
President of the United States ; and before the Same shall take 
Effect, shall be approved by him, or being disapproved by him, 
shall be repassed by two thirds of the Senate and House of 
Representatives, according to the Rules and Limitations pre- 
scribed in the Case of a Bill. 

Section. 8. The Congress shall have Power To lay and 
collect Taxes, Duties, Imposts and Excises, to pay the Debts 
and provide for the common Defence and general Welfare of 
the United States; but all Duties, Imposts and Excises shall be 
uniform throughout the United States; 

To borrow Money on the Credit of the United States; 

To regulate Commerce with foreign Nations, and among the 
several States, and with the Indian Tribes; 

To establish an uniform Rule of Naturalization, and uniform 
Laws on the subject of Bankruptcies throughout the United 
States; 

To coin Money, regulate the Value thereof, and of foreign 
Coin, and fix the Standard of Weights and Measures; 

To provide for the Punishment of counterfeiting the Securi- 
ties and current Coin of the United States; 

To establish Post Offices and post Roads; 

To promote the Progress of Science and useful Arts, by secur- 



CONSTITUTION OF UNITED STATES 117 

ing for limited Times to Authors and Inventors the exclusive 
Right to their respective Writings and Discoveries ; 

To constitute Tribunals inferior to the supreme Court; 

To define and Punish Piracies and Felonies committed on the 
high Seas, and Offences against the Law of Nations; 

To declare War, grant Letters of Marque and Reprisal, and 
make Rules concerning Captures on Land and Water; 

To raise and support Armies, but no Appropriation of Money 
to that Use shall be for a longer Term than two Years; 

To provide and maintain a Navy; 

To make Rules for the Government and Regulation of the 
land and naval Forces; 

To provide for calling forth the Militia to execute the 
Laws of the Union, suppress Insurrections and repel Inva- 
sions ; 

To provide for organizing, arming, and disciplining, the 
Militia, and for governing such Part of them as may be em- 
ployed in the Service of the United States, reserving to the 
States respectively, the Appointment of the Officers, and the 
Authority of training the Militia according to the discipline 
prescribed by Congress; 

To exercise exclusive Legislation in all Cases whatsoever, 
over such District (not exceeding ten Miles square) as may, by 
Cession of particular States, and the Acceptance of Congress, 
become the Seat of the Government of the United States, and 
to exercise like Authority over all Places purchased by the 
Consent of the Legislature of the State in which the Same shall 
be, for the Erection of Forts, Magazines, Arsenals, dock- Yards, 
and other needful Buildings ; — And 

To make all Laws which shall be necessary and proper for 
carrying into Execution the foregoing Powers, and all other 
Powers vested by this Constitution in the Government of the 
United States, or in any Department or Officer thereof. 

Section. 9. The Migration or Importation of such Persons 
as any of the States now existing shall think proper to admit, 
shall not be prohibited by the Congress prior to the Year one 
thousand eight hundred and eight, but a Tax or Duty may be 



ii8 THE FORMATION OF CONSTITUTIONS 

imposed on such Importation, not exceeding ten dollars for 
each Person. 

The Privilege of the Writ of Habeas Corpus shall not be sus- 
pended, unless when in Cases of Rebellion or Invasion the 
public Safety may require it. 

No Bill of Attainder or ex post facto Law shall be passed. 

No Capitation, or other direct, tax shall be laid, unless in 
Proportion to the Census or Enumeration herein before directed 
to be taken. 

No Tax or Duty shall be laid on Articles exported from any 
State. 

No Preference shall be given by any Regulation of Commerce 
or Revenue to the Ports of one State over those of another: nor 
shall Vessels bound to, or from, one State, be obliged to enter, 
clear, or pay Duties in another. 

No Money shall be drawn from the Treasury, but in Conse- 
quence of Appropriations made by Law; and a regular State- 
ment and Account of the Receipts and Expenditures of all 
public Money shall be published from time to time. 

No Title of Nobility shall be granted by the United States : 
And no Person holding any Office of Profit or Trust under them, 
shall, without the Consent of the Congress, accept of any pre- 
sent. Emolument, OfiSce, or Title, of any kind whatever, from 
any King, Prince, or foreign State. 

Section, io. No State shall enter into any Treaty, Alliance, 
or Confederation ; grant Letters of Marque and Reprisal ; coin 
Money; emit Bills of Credit; make any Thing but gold and 
silver Coin a Tender in Payment of Debts; pass any Bill of 
Attainder, ex post facto Law, or Law impairing the Obligation 
of Contracts, or grant any Title of Nobility. 

No State shall, without the Consent of the Congress, lay any 
Imposts or Duties on Imports or Exports, except what may be 
absolutely necessary for executing it's inspection Laws : and the 
net Produce of all Duties and Imposts, laid by any State on 
Imports or Exports, shall be for the Use of the Treasury of the 
United States ; and all such Laws shall be subject to the Revision 
and Controul of the Congress. 



CONSTITUTION OF UNITED STATES 119 

No State shall, without the Consent of Congress, lay any 
Duty of Tonnage, keep Troops, or Ships of War in time of 
Peace, enter into any Agreement or Compact with another 
State, or with a foreign Power, or engage in War, unless actu- 
ally invaded, or in such imminent Danger as will not admit of 
Delay. 

Article II. 

Section, i . The executive Power shall be vested in a Presid- 
ent of the United States of America. He shall hold his Office 
during the Term of four Years, and, together with the Vice 
President, chosen for the same Term, be elected, as follows 

Each State shall appoint, in such Manner as the Legislature 
thereof may direct, a Number of Electors, equal to the whole 
Number of Senators and Representatives to which the State 
may be entitled in the Congress : but no Senator or Representa- 
tive, or Person holding an Office of Trust or Profit under the 
United States, shall be appointed an Elector. 

The electors shall meet in their respective States, and vote by 
ballot for two Persons, of whom one at least shall not be an 
Inhabitant of the same State with themselves. And they shall 
make a List of all the Persons voted for, and of the Number of 
Votes for each ; which List they shall sign and certify, and trans- 
mit sealed to the Seat of the Government of the United States, 
directed to the President of the Senate. The President of the 
Senate shall, in the Presence of the Senate and House of Repre- 
sentatives, open all the Certificates, and the Votes sha^ then be 
counted. The Person having the greatest Number of Votes 
shall be the President, if such Number be a Majority of the 
whole Number of Electors appointed; and if there be more 
than one who have such Majority and have an equal Number 
of Votes, then the House of Representatives shall immediately 
chuse by Ballot one of them for President; and if no person 
have a Majority, then from the five highest on the List the 
said House shall in like Manner chuse the President. But in 
chusing the President, the Votes shall be taken by States, the 
Representation from each State having one Vote; A quorum 



120 THE FORMATION OF CONSTITUTIONS 

for this Purpose shall consist of a Member or Members from 
two-thirds of the States, and a Majority of all the States shall 
be necessary to a Choice. In every Case, after the Choice of 
the President, the person having the greatest Number of Votes 
of the Electors shall be the Vice President. But if there should 
remain two or more who have equal Votes, the Senate shall 
chuse from them by Ballot the Vice-President. 

The Congress may determine the Time of chusing the Elect- 
ors, and the Day on which they shall give their Votes ; which 
Day shall be the same throughout the United States. 

No Person except a natural born Citizen, or a Citizen of the 
United States, at the time of the Adoption of this Constitution, 
shall be ehgible to the OflEice of President; neither shall any Per- 
son be eligible to that Office who shall not have attained to the 
Age of thirty five Years, and been fourteen Years a Resident 
within the United States. 

In Case of the Removal of the President from Office, or of 
his Death, Resignation, or Inability to discharge the Powers 
and Duties of the said Office, the same shall devolve on the 
Vice President, and the Congress may by Law provide for the 
Case of Removal, Death, Resignation, or Inability, both of the 
President and Vice President, declaring what Officer shall then 
act as President, and such Officer shall act accordingly, until 
the Disability be removed, or a President shall be elected. 

The President shall, at stated Times, receive for his Services, 
a Compensation, which shall neither be encreased nor dimin- 
ished during the Period for which he shall have been elected, 
and he shall not receive within that Period any other Emolu- 
ment from the United States, or any of them. 

Before he enter on the Execution of his Ofi&ce, he shall take 
the following Oath or Affirmation: — "I do solemnly swear (or 
"affirm) that I will faithfully execute the Office of President of 
" the United States, and will to the best of my Ability, preserve, 
"protect and defend the Constitution of the United States." 

Section. 2. The President shall be Commander in Chief of 
the Army and Navy of the United States, and of the MiHtia of 
the several States, when called into the actual Service of the 



CONSTITUTION OF UNITED STATES 121 

United States; he may require the Opinion, in writing, of the 
principal Officer in each of the executive Departments, upon 
any Subject relating to the Duties of their respective Offices, 
and he shall have Power to grant Reprieves and Pardons for 
Offences against the United States, except in Cases of Impeach- 
ment. 

He shall have Power, by and with the Advice and Consent of 
the Senate, to make Treaties, provided two thirds of the Sen- 
ators present concur; and he shall nominate, and by and with 
the Advice and Consent of the Senate, shall appoint Ambassa- 
dors, other public Ministers and Consuls, Judges of the supreme 
Court, and all other Officers of the United States, whose 
Appointments are not herein otherwise provided for, and which 
shall be established by Law : but the Congress may by Law vest 
the Appointment of such inferior Officers, as they think proper, 
in the President alone, in the Courts of Law, or in the Heads of 
Departments. 

The President shall have Power to ffil up all Vacancies that 
may happen during the Recess of the Senate, by granting Com- 
missions which shall expire at the End of their next Session. 

Section. 3. He shall from time to time give to the Congress 
Information of the State of the Union, and recommend to their 
Consideration such Measures as he shall judge necessary and 
expedient; he may, on extraordinary Occasions, convene both 
Houses, or either of them, and in Case of Disagreement between 
them, with Respect to the Time of Adjournment, he may 
adjourn them to such Time as he shall think proper; he shall 
receive Ambassadors and other public Ministers; he shall take 
Care that the Laws be faithfully executed, and shall Commis- 
sion all the Officers of the United States. 

Section. 4. The President, Vice President and all civil 
Officers of the United States, shall be removed from Office on 
Impeachment for, and Conviction of. Treason, Bribery, or other 
high Crimes and Misdemeanors. 



122 THE FORMATION OF CONSTITUTIONS 

Article III. 

SectioNo I. The judicial Power of the United States, shall be 
vested in one supreme Court, and in such inferior Courts as the 
Congress may from time to time ordain and establish. The 
Judges, both of the supreme and inferior Courts, shall hold 
their Offices during good Behavior, and shall, at stated Times, 
receive for their Services, a Compensation, which shall not be 
diminished during their Continuance in Office. 

Section. 2. The judicial Power shall extend to all Cases, in 
Law and Equity, arising under this Constitution, the Laws of 
the United States, and Treaties made, or which shall be made, 
under their Authority; — to all Cases affecting Ambassadors, 
other pubHc Ministers and Consuls; — to all Cases of admiralty 
and maritime Jurisdiction ; — to Controversies to which the 
United States shall be a Party; — to Controversies between 
two or more States; — between a State and Citizens of another 
State; — between Citizens of different States, - — between Citi- 
zens of the same State claiming Lands under Grants of differ- 
ent States, and between a State, or the Citizens thereof, and 
foreign States, Citizens or Subjects. 

In all Cases affecting Ambassadors, other public Ministers 
and Consuls, and those in which a State shall be Party, the 
supreme Court shall have original Jurisdiction. In all the other 
Cases before mentioned, the supreme Court shall have appellate 
Jurisdiction, both as to Law and Fact, with such Exceptions, 
and under such Regulations as the Congress shall make. 

The Trial of all Crimes, except in Cases of Impeachment, 
shall be by Jury ; and such Trial shall be held in the State where 
the said Crimes shall have been committed; but when not 
committed within any State, the Trial shall be at such Place or 
Places as the Congress may by Law have directed. 

Section. 3. Treason against the United States, shall consist 
only in levying War against them, or in adhering to their Ene- 
mies, giving them Aid and Comfort. No Person shall be con- 
victed of Treason unless on the Testimony of two Witnesses 
to the same overt Act, or on Confession in open Court. 



CONSTITUTION OF UNITED STATES 123 

The Congress shall have Power to declare the Punishment 
of Treason, but no Attainder of Treason shall work Corruption 
of Blood, or Forfeiture except during the Life of the Person 
attainted. 

Article IV. 

Section, i. Full Faith and Credit shall be given in each 
State to the public Acts, Records, and judicial Proceedings of 
every other State. And the Congress may by general Laws 
prescribe the Manner in which such Acts, Records and Pro- 
ceedings shall be proved, and the Effect thereof. 

Section. 2. The Citizens of each State shall be entitled to all 
Privileges and Immunities of Citizens in the several States. 

A person charged in any State with Treason, Felony, or other 
Crime, who shall flee from Justice, and be found in another 
State, shall on Demand of the executive Authority of the State 
from which he filed, be delivered up to be removed to the State 
having Jurisdiction of the Crime. 

No Person held to Service or Labour in one State, under the 
Laws thereof, escaping into another, shall, in Consequence of 
any Law or Regulation therein, be discharged from such Serv- 
ice or Labour, but shall be delivered up on Claim of the Party 
to whom such Service or Labour may be due. 

Section. 3. New States may be admitted by the Congress 
into this Union ; but no new States shall be formed or erected 
within the Jurisdiction of any other State; nor any State be 
formed by the Junction of two or more States, or Parts of 
States, without the Consent of the Legislatures of the States 
concerned as well as of the Congress. 

The Congress shall have Power to dispose of and make all 
needful Rules and Regulations respecting the Territory or other 
Property belonging to the United States; and nothing in this 
Constitution shall be so construed as to Prejudice any Claims 
of the United States, or of any particular State. 

Section. 4. The United States shall guarantee to every 
State in this Union a Republican Form of Government, and 
shall protect each of them against Invasion; and on Applica- 



124 THE FORMATION OF CONSTITUTIONS 

tion of the Legislature, or of the Executive (when the Legisla- 
ture cannot be convened) against domestic Violence. 

Article V. 

The Congress, whenever two thirds of both Houses shall 
deem it necessary, shall propose Amendments to this Consti- 
tution, or, on the Application of the Legislatures of two thirds 
of the several States, shall call a Convention for proposing 
Amendments, which, in either Case, shall be valid to all Intents 
arid Purposes, as Part of this Constitution, when ratified by 
the Legislatures of three fourths of the several States, or by 
Conventions in three fourths thereof, as the one or the other 
Mode of Ratification may be proposed by the Congress; Pro- 
vided that no Amendment which may be made prior to the 
Year One thousand eight hundred and eight shall in any 
Manner affect the first and fourth Clauses in the Ninth Section 
of the first Article; and that no State, without its Consent, 
shall be deprived of its equal Suffrage in the Senate. 

Article VI. 

All Debts contracted and Engagements entered into, before 
the Adoption of this Constitution, shall be as valid against the 
United States under this Constitution, as under the Confedera- 
tion. 

This Constitution, and the Laws of the United States which 
shall be made in Pursuance thereof; and all Treaties made, or 
which shall be made, under the Authority of the United States, 
shall be the supreme Law of the Land; and the Judges in every 
State shall be bound thereby, any Thing in the Constitution or 
Laws of any State to the Contrary notwithstanding. 

The Senators and Representatives before mentioned, and the 
Members of the several State Legislatures, and all executive 
and judicial Officers, both of the United States and of the sev- 
eral States, shall be bound by Oath or Affirmation, to support 
this Constitution; but no religious Test shall ever be required 
as a Qualification to any Office or public Trust under the 
United States. 



CONSTITUTION OF UNITED STATES 125 

Article VII. 

The Ratification of the Conventions of nine States, shall be 
sufficient for the Establishment of this Constitution between 
the States so ratifying the Same. 
Done in Convention by the Unanimous Consent of the 
States present the Seventeenth Day of September in the 
Year of our Lord one thousand seven hundred and Eighty 
seven and of the Independence of the United States of 
America the Twelfth In Witness whereof We have here- 
unto subscribed our Names . . . 



CHAPTER XIV 

THE RATIFICATION OF THE CONSTITUTION 

The finished Constitution probably satisfied no one in the Convention. 
Most of the delegates, to be sure, were ready to sign the instrument, but 
many did so with misgivings; some emphatically withheld their assent. 
At Frankhn's suggestion, a form of ratification by the Convention was 
agreed upon which would give a semblance of unanimity: "Done in the 
Convention by the unanimous consent of the States present." It was 
quite in accord with the manner in which the calling of the Convention 
had been forced upon Congress, that the Constitution was sent to Con- 
gress with definite prescriptions as to its ratification by the States. In 
open disregard of the Articles of Confederation, of which it could be 
legally only a revision, the Constitution was to become operative when 
ratified by nine of the thirteen States. Congress was thus invited to vio- 
late the fundamental law under which alone it had legal existence. The 
process of ratification in each State was similar to that followed in Georgia, 
except that the conventions were variously constituted, as one or another 
system of apportionment prevailed. Madison's defense of the new Con- 
stitution as neither a national nor a federal constitution, but a composi- 
tion of both, probably represents the view which most of the framers took 
of their handiwork. 

37. Transmission of the New Constitution to Congress.^ 

Resolved, That the preceding constitution be laid before the 
United States in congress assembled, and that it is the opinion 
of this convention, that it should afterwards be submitted to 
a convention of delegates, chosen in each state by the people 
thereof, under the recommendation of its legislature, for their 
assent and ratification; and that each convention assenting 
thereto, and ratifying the same, should give notice thereof to 
the United States in congress assembled. 

Resolved, That it is the opinion of this convention, that as 
soon as the conventions of nine States shall have ratified this 
constitution, the United States in congress assembled should 
fix a day on which electors should be appointed by the states 
which shall have ratified the same, and a day on which the 

^ Elliot, Debates, v, 541. 



RATIFICATION OF CONSTITUTION 127 

electors should assemble to vote for the president, and the time 
and place for commencing proceedings under this constitution. 
That after such publication the electors should be appointed, 
and the senators and representatives elected; that the electors 
should meet on the day fixed for the election of the president, 
and should transmit their votes certified, signed, sealed, and 
directed, as the constitution requires, to the secretary of the 
United States in congress assembled; that the senators and 
representatives should convene at the time and place assigned; 
that the senators should appoint a president of the senate, for 
the sole purpose of receiving, opening, and counting the votes 
for president; and that after he shall be chosen, the congress, 
together with the president, should without delay proceed to 
execute this constitution. 
By the unanimous order of the convention. 

George Washington, President. 

38. Ratification of the Constitution by the State of Georgia.^ 
In Convention, Wednesday, January 2, 1788. 
To all to whom these presents shall come. Greeting: 

Whereas the form of a Constitution for the government of the 
United States of America, was, on the 17th day of September, 
1787, agreed upon and reported to Congress by the deputies of 
the said United States convened in Philadelphia, which said 
Constitution is written in the words following, to wit: . . . 

And whereas the United States in Congress assembled did on 
the 28th day of September, 1787, resolve, unanimously, ''That 
the said report, with the resolution and letter accompanying 
the same, be transmitted to the several legislatures, in order to 
be submitted to a convention of delegates chosen in each State 
by the people thereof, in conformity to the resolves of the Con- 
vention made and provided in that case." 

And whereas the legislature of the State of Georgia did, on 

the 26th day of October, 1787, in pursuance of the above recited 

resolution of Congress, resolve, that a convention be elected on 

the day of the next general election, and in the same manner 

^ Elliot, Debates, i, 323-24. 



128 THE FORMATION OF CONSTITUTIONS 

that representatives are elected; and that the said Convention 
consist of not more than three members from each county; and 
that the said convention should meet at Augusta, on the 4th 
Tuesday in December then next, and, as soon thereafter as 
convenient, proceed to consider the said report and resolu- 
tions, and to adopt or reject any part or the whole thereof; — 

Now know ye, that we, the delegates of the people of the 
State of Georgia, in convention met, pursuant to the resolu- 
tions of the legislature aforesaid, having taken into our serious 
consideration the said Constitution, have assented to, ratified, 
and adopted, and by these presents do, in virtue of the powers 
and authority to us given by the people of the said State, for 
that purpose, for and in behalf of ourselves and our constitu- 
ents, fully and entirely assent to, ratify, and adopt, the said 
Constitution. 

Done in Convention, at Augusta, in the said State, on the 
2d day of January, in the year of our Lord 1788, and of the 
independence of the United States the 12th. 

In witness whereof, we have hereunto subscribed our names. 

John Wereat, President, 
and delegate for the county of Richmond. 

39. The Constitution — National or Federal? ^ 

The first question that offers itself is, whether the general 
form and aspect of the Government be strictly republican. It 
is evident that no other form would be reconcilable with the 
genius of the People of America; with the fundamental prin- 
ciples of the Revolution; or with that honorable determination 
which animates every votary of freedom, to rest all our politi- 
cal experiments on the capacity of mankind for self-govern- 
ment. If the plan of the Convention, therefore, be found to 
depart from the republican character, its advocates must 
abandon it as no longer defensible. 

What then are the distinctive characters of the republican 
form? Were an answer to this question to be sought, not by 
recurring to principles, but in the application of the term by 
^ Federalist, No. 38 (Ford ed.), 245-52 passim. 



RATIFICATION OF CONSTITUTION 129 

political writers, to the Constitutions of different States, no 
satisfactory one would ever be found. Holland, in which no 
particle of the supreme authority is derived from the People, 
has passed almost universally under the denomination of a 
republic. The same title has been bestowed on Venice, where 
absolute power over the great body of the People is exercised, 
in the most absolute manner, by a small body of hereditary 
nobles. Poland, which is a mixture of aristocracy and of mon- 
archy in their worst forms, has been dignified with the same 
appellation. The Government of England, which has one 
repubhcan branch only, combined with an hereditary aristo- 
cracy and monarchy, has, with equal impropriety, been fre- 
quently placed on the list of republics. These examples, which 
are nearly as dissimilar to each other as to a genuine republic, 
show the extreme inaccuracy with which the term has been 
used in political disquisitions. 

If we resort, for a criterion, to the different principles on 
which different forms of Government are established, we may 
define a republic to be, or at least may^bestow that name on, a 
Government which derives all its powers directly or indirectly 
from the great body of the People, and is administered by per- 
sons holding their offices during pleasure, for a limited period, 
or during good behavior. It is essential to such a Government, 
that it be derived from the great body of the society, not from 
an inconsiderable proportion, or a favored class of it; otherwise 
a handful of tyrannical nobles, exercising their oppressions by 
a delegation of their powers, might aspire to the rank of repub- 
licans, and claim for their Government the honorable title of 
repubhc. It is sufficient for such a Government, that the per- 
sons administering it be appointed, either directly or indi- 
rectly, by the People; and that they hold their appointments 
by either of the tenures just specified ; otherwise every Govern- 
ment in the United States, as well as every other popular 
Government that has been or can be well organized or well 
executed, would be degraded from the republican character. 
According to the Constitution of every State in the Union, 
some or other of the officers of Government are appointed 



I30 THE FORMATION OF CONSTITUTIONS, 

indirectly only by the People. According to most of them, the 
chief magistrate himself is so appointed. And according to 
one, this mode of appointment is extended to one of the coordi- 
nate branches of the Legislature. According to all the Consti- 
tutions, also, the tenure of the highest offices is extended to a 
definite period, and in many instances, both within the Legis- 
lative and Executive departments, to a period of years. Ac- 
cording to the provisions of most of the Constitutions, again, 
as well as according to the most respectable and received opin- 
ions on the subject, the members of the Judiciary department 
are to retain their offices by the firm tenure of good behav- 
ior. . . . 

Could any further proof be required of the republican com- 
plexion of .this system, the most decisive one might be found in 
its absolute prohibition of titles of nobility, both under the 
Federal and the State Governments; and in its express guar- 
anty of the republican form to each of the latter. 

"But it was not sufficient," say the adversaries of the pro- 
posed Constitution, "for the Convention to adhere to the 
republican form. They ought, with equal care, to have pre- 
served the Federal form, which regards the Union as a Confed- 
eracy of sovereign States; instead of which, they have framed a 
National Government, which regards the Union as a consolid- 
ation of the States." And it is asked by what authority this 
bold and radical innovation was undertaken? The handle 
which has been made of this objection requires, that it should 
be examined with some precision. 

Without inquiring into the accuracy of the distinction on 
which the objection is founded, it will be necessary to a just 
estimate of its force, First, to ascertain the real character of 
the Government in question; Secondly, to inquire how far the 
Convention were authorized to propose such a Government; 
and Thirdly, how far the duty they owed to their country 
could supply any defect of regular authority. 

First. In order to ascertain the real character of the Govern- 
ment, it may be considered in relation to the foundation on 
which it is to be established; to the sources from which its 



RATIFICATION OF CONSTITUTION 131 

ordinary powers are to be drawn; to the operation of these 
powers; to the extent of them; and to the authority by which 
future changes in the Government are to be introduced. 

On examining the first relation, it appears, on one hand, that 
the Constitution is to be founded on the assent and ratifica- 
tion of the People of America, given by deputies elected for the 
special purpose ; but on the other, that this assent and ratifica- 
tion is to be given by the People, not as individuals composing 
one entire Nation, but as composing the distinct and inde- 
pendent States to which they respectively belong. It is to be 
the assent and ratification of the several States, derived from 
the supreme authority in each State, — the authority of the 
People themselves. The act, therefore, establishing the Consti- 
tution, will not be a National, but a Federal act. 

That it will be a Federal, and not a National act, as these 
terms are understood by the objectors, the act of the People, as 
forming so many independent States, not as forming one aggre- 
gate Nation, is obvious from this single consideration, that it is 
to result neither from the decision of a majority of the People 
of the Union, nor from that of a majority of the States. It 
must result from the unanimous assent of the several States 
that are parties to it, differing no otherwise from their ordinary 
assent than in its being expressed, not by the Legislative author- 
ity, but by that of the People themselves. Were the People 
regarded in this transaction as forming one Nation, the will of 
the majority of the whole People of the United States would 
bind the minority, in the same manner as the majority in each 
State must bind the minority; and the will of the majority 
must be determined either by a comparison of the individual 
votes, or by considering the will of the majority of the States 
as evidence of the will of a majority of the People of the United 
States. Neither of these rules has been adopted. Each State, 
in ratifying the Constitution, is considered as a sovereign body, 
independent of all others, and only to be bound by its own vol- 
untary act. In this relation, then, the new Constitution will, 
if established, be a Federal, and not a National Constitution. 

The next relation is, to the sources from which the ordinary 



132 THE FORMATION OF CONSTITUTIONS 

powers of Government are to be derived. The House of Repre- 
sentatives will derive its powers from the People of America; 
and the People will be represented in the same proportion, and 
on the same principle, as they are in the Legislature of a partic- 
ular State. So far the Government is National, not Federal. 
The Senate, on the other hand, will derive its powers from the 
States, as political and coequal societies; and these will be 
represented on the principle of equality in the Senate, as they 
now are in the existing Congress. So far the Government is 
Federal, not National. The Executive power will be derived 
from a very compound source. The immediate election of the 
President is to be made by the States in their political char- 
acters. The votes allotted to them are in a compound ratio, 
which considers them partly as distinct and coequal societies, 
partly as unequal members of the same society. The eventual 
election, again, is to be made by that branch of the Legislature 
which consists of the National representatives; but in this 
particular act, they are to be thrown into the form of individual 
delegations, from so many distinct and coequal bodies politic. 
From this aspect of the Government, it appears to be of a 
mixed character, presenting at least as many Federal as 
National features. 

The difference between a Federal and National Government, 
as it relates to the operation of the Government, is supposed to 
consist in this, that in the former, the powers operate on the 
political bodies composing the Confederacy, in their political 
capacities; in the latter, on the individual citizens composing 
the Nation, in their individual capacities. On trying the Con- 
stitution by this criterion, it falls under the National, not the 
Federal character; though perhaps not so completely as has 
been understood. In several cases, and particularly in the trial 
of controversies to which States may be parties, the}^ must be 
viewed and proceeded against in their collective and political 
capacities only. So far the National countenance of the Govern- 
ment on this side seems to be disfigured by a few Federal 
features. But this blemish is perhaps unavoidable in any plan; 
and the operation of the Government on the People, in their 



RATIFICATION OF CONSTITUTION 133 

individual capacities, in its ordinary and most essential pro- 
ceedings, may, on the whole, designate it, in this relation, a 
National Government. 

But if the Government be National with regard to the 
operation of its powers, it changes its aspect again when we 
contemplate it in relation to the extent of its power. The idea 
of a National Government involves in it, not only an authority 
over the individual citizens, but an indefinite supremacy over 
all persons and things, so far as they are objects of lawful 
Government. Among a People consoHdated into one Nation, 
this supremacy is completely vested in the National Legislature. 
Among communities united for particular purposes, it is vested 
partly in the general, and partly in the municipal Legislatures. 
In the former case, all local authorities afe subordinate to the 
supreme; and may be controlled, directed or abolished b}'- it 
at pleasure. In the latter, the local or municipal authorities 
form distinct and independent portions of the supremacy, no 
more subject, within their respective spheres, to the general 
authority, than the general authority is subject to them, within 
its own sphere. In this relation, then, the proposed Govern- 
ment cannot be deemed a National one; since its jurisdiction 
extends to certain enumerated objects only, and leaves to the 
several States a residuary and inviolable sovereignty over all 
other objects. It is true, that in controversies relating to the 
boundary between the two jurisdictions, the tribunal which is 
ultimately to decide, is to be established under the General 
Government. But this does not change the principle of the 
case. The decision is to be impartially made, according to the 
rules of the Constitution; and all the usual and most effectual 
precautions are taken to secure this impartiality. Some such 
tribunal is clearly essential to prevent an appeal to the sword, 
and a dissolution of the compact; and that it ought to be estab- 
lished under the General, rather than under the local Govern- 
ments, or, to speak more properly, that it could be safely 
established under the first alone, is a position not likely to be 
combated. 

If we try the Constitution by its last relation, to the author- 



134 THE FORMATION OF CONSTITUTIONS 

ity by which amendments are to be made, we find it neither 
wholly National, nor wholly Federal. Were it wholly National, 
the supreme and ultimate authority would reside in the 
majority of the People of the Union ; and this authority would 
be competent at all times, like that of a majority of every 
National society, to alter or abolish its established Govern- 
ment. Were it wholly Federal, on the other hand, the concur- 
rence of each State in the Union would be essential to every 
alteration that would be binding on all. The mode provided 
by the Plan of the Convention is not founded on either of these 
principles. In requiring more than a majority, and particu- 
larly, in computing the proportion by States, not by citizens, it 
departs from the National, and advances towards the Federal 
character: in rendering the concurrence of less than the whole 
number of States sufficient, it loses again the Federal, and 
partakes of the National character. 

The proposed Constitution, therefore, is, in strictness, 
neither a National nor a Federal Constitution, but a composi- 
tion of both. In its foundation it is Federal, not National: in 
the sources from which the ordinary powers of the Govern- 
ment are drawn, it is partly Federal, and partly National: in 
the operation of these powers^, it is National, not Federal: in 
the extent of them, again, it is Federal, not National: and, 
finally, in the authoritative mode of introducing amendments, 
it is neither wholly Federal nor wholly National. 



CHAPTER XV 

THE FIRST AMENDMENTS TO THE CONSTITUTION 

Amendments to nearly every article of the new Constitution were pro- 
posed in the ratifying conventions and in the press; but the objection 
most commonly urged was that the Constitution contained no declara- 
tion of rights. To remove this objection, Madison proposed in the first 
session of Congress the addition of articles which, without altering the 
framework of the instrument, should constitute a bill of rights. Of the 
twelve amendments proposed by the select committee to which Mad- 
ison's propositions were referred, ten were ratified and became a part of 
the Constitution. The Eleventh Amendment was adopted as a direct re- 
sult of the suit brought against the "sovereign State of Georgia" in 1793. 

40. A Proposal to Amend the New Constitution.^ 

It cannot be a secret to the gentlemen in this House, that, 
notwithstanding the ratification of this system of Government 
by eleven of the thirteen United States, in some cases unani- 
mously, in others by large majorities; yet still there is a great 
number of our constituents who are dissatisfied with it ; among 
whom are many respectable for their talents and patriotism, 
and respectable for the jealousy they have for their liberty, 
which, though mistaken in its object, is laudable in its motive. 
There is a great body of the people falling under this descrip- 
tion, who at present feel much inclined to join their support 
to the cause of Federalism, if they were satisfied on this one 
point. We ought not to disregard their inclination, but, on 
principles of amity and moderation, conform to their wishes, 
and expressly declare the great rights of mankind secured 
under this constitution. The acquiescence which our fellow- 
citizens show under the Government, calls upon us for a like 
return of moderation. But perhaps there is a stronger motive 
than this for our going into a consideration of the subject. It 
is to provide those securities for liberty which are required by 

^ Speech of James Madison in the House of Representatives, June 8, 
1789. Annals of Congress, i Cong., i Sess., 449-57 passim. 



136 THE FORMATION OF CONSTITUTIONS 

a part of the community; I allude in a particular manner to 
those two States that have not thought fit to throw themselves 
into the bosom of the Confederacy. It is a desirable thing, on 
our part as well as theirs, that a reunion should take place as 
soon as possible. I have no doubt, if we proceed to take those 
steps which would be prudent and requisite at this juncture, 
that in a short time we should see that disposition prevailing 
in those States which have not come in, that we have seen 
prevailing in those States which have embraced the constitu- 
tion. 

But I will candidly acknowledge, that, over and above all 
these considerations, I do conceive that the constitution may 
be amended; that is to say, if all power is subject to abuse, that 
then it is possible the abuse of the powers of the General 
Government may be guarded against in a more secure manner 
than is now done, while no one advantage arising from the 
exercise of that power shall be damaged or endangered by it. 
We have in this way something to gain, and, if we proceed with 
caution, nothing to lose. And in this case it is necessary to 
proceed with caution; for while we feel all these inducements 
to go into a revisal of the constitution, we must feel for the 
constitution itself, and make that revisal a moderate one. I 
should be unwilling to see a door opened for a reconsideration 
of the whole structure of the Government — for a reconsidera- 
tion of the principles and the substance of the powers given; 
because I doubt, if such a door were opened, we should be very 
likely to stop at that point which would be safe to the Govern- 
ment itself. But I do wish to see a door opened to consider, so 
far as to incorporate those provisions for the security of rights, 
against which I believe no serious objection has been made by 
any class of our constituents : such as would be hkely to meet 
with the concurrence of two-thirds of both Houses, and the 
approbation of three-fourths of the State Legislatures. I will 
not propose a single alteration which I do not wish to see take 
place, as intrinsically proper in itself, or proper because it is 
wished for by a respectable number of my fellow-citizens ; and 
therefore I shall not propose a single alteration but is likely to 



FIRST AMENDMENTS 137 

meet the concurrence required by the constitution. There 
have been objections of various kinds made against the consti- 
tution. Some were levelled against its structure because the 
President was without a council; because the Senate, which is 
a legislative body, had judicial powers' in trials on impeach- 
ments ; and because the powers of that body were compounded 
in other respects, in a manner that did not correspond with a 
particular theory; because it grants more power than is sup- 
posed to be necessary for every good purpose, and controls the 
ordinary powers of the State Governments. I know some 
respectable characters who opposed this Government on these 
grounds; but I beheve that the great mass of the people who 
opposed it, disliked it because it did not contain effectual pro- 
visions against encroachments on particular rights, and those 
safeguards which they have been long accustomed to have 
interposed between them and the magistrate who exercises 
the sovereign power; nor ought we to consider them safe, while 
a great number of our fellow-citizens think these securities 
necessary. . . . 

It has been said, that it is unnecessary to load the constitu- 
tion with this provision, because it was not found effectual in 
the constitution of the particular States. It is true, there are a 
few particular States in which some of the most valuable 
articles have not, at one time or other, been violated; but it 
does not follow but they may have, to a certain degree, a salut- 
ary effect against the abuse of power. If they are incorporated 
into the constitution, independent tribunals of justice will con- 
sider themselves in a peculiar manner the guar4ians of those 
rights; they will be an impenetrable bulwark against every 
assumption of power in the legislative or executive; they will 
be naturally led to resist every encroachment upon rights 
expressly stipulated for in the constitution by the declaration 
of rights. Besides this security, there is a great probability 
that such a declaration in the federal system would be enforced ; 
because the State Legislatures will jealously and closely watch 
the operations of this Government, and be able to resist with 
more effect every assumption of power, than any other power 



138 THE FORMATION OF CONSTITUTIONS 

on earth can do; and the greatest opponents to a Federal 
Government admit the State Legislatures to be sure guardians 
of the people's liberty. I conclude, from this view of the sub- 
ject, that it will be proper in itself, and highly poHtic, for the 
tranquillity of the public mind, and the stability of the Govern- 
ment, that we should offer something, in the form I have pro- 
posed, to be incorporated in the system of Government as a 
declaration of the rights of the people. 

4 1 . Resolution of Congress for the A mendment of the Constitution . ^ 

The conventions of a mlmber of the states having, at the 
time of their adopting the Constitution, expressed a desire, in 
order to prevent misconstruction or abuse of its powers, that 
further declaratory and restrictive clauses should be added; 
and as extending the ground of public confidence in the govern- 
ment will best insure the beneficent ends of its institution; — 

Resolved by the Senate and House of Representatives of the 
United States of America, in Congress assembled, two thirds of 
both houses concurring, that the following articles be proposed 
by the legislatures of the several states, as amendments to the 
Constitution of the United States, all or any of which articles, 
when ratified by three fourths of the said legislatures, to be 
valid, to all intents and purposes, as part of the said Constitu- 
tion. . . . [Of the twelve proposed, ten were adopted and 
became a part of the Constitution as follows :] 

42. The First Ten Amendments.^ 

Article I. 

Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof; or abridging 
the freedom of speech or of the press; or the right of the people 
peaceably to assemble, and to petition the government for a 
redress of grievances. 

^ Elliot, Debates, 1, 338. 

2 These amendments went into effect November 3, 1791. Revised 
Statutes (1878), 28-30. 



FIRST AMENDMENTS • 139 

Article II. 

A well-regulated militia being necessary to the security of 
a free State, the right of the people to keep and bear arms shall 
not be infringed. 

Article III. 

No soldier shall, in time of peace, be quartered in any house 
without the consent of the owner, nor in time of war, but in a 
manner to be prescribed by law. 

Article IV. 

The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, 
shall not be violated, and no warrants shall issue but upon 
probable cause, supported by oath or affirmation, and particu- 
larly describing the place to be searched, and the person or 
things to be seized. 

Article V. ~ 

No person shall be held to answer for a capital or otherwise 
infamous crime, unless on a presentment or indictment of a 
grand jury, except in cases arising in the land or naval forces, 
or in the. militia, when in actual service in time of war or public 
danger; nor shall any person be subject for the same offense to 
be twice put in jeopardy of life or limb ; nor shall be compelled 
in any criminal case to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process of 
law; nor shall private property be taken for public use without 
just compensation. 

Article VI. 

In all criminal prosecutions the accused shall enjoy the right 
to a speedy and public trial, by an impartial jury of the State 
and district wherein the crime shall have been committed, 
which district shall have been previously ascertained by law, 
and to be informed of the nature and cause of the accusation; 
to be confronted with the witnesses against him ; to have com- 
pulsory process for obtaining witnesses in his favor, and to have 
the assistance of counsel for his defense. 



140 THE FORMATION OF CONSTITUTIONS 

Article VII. 

In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be pre- 
served, and no fact tried by a jury shall be otherwise re- 
examined in any court of the United States, than according to 
the rules of the common law. 

Article VIII. 

Excessive bail shall not be required, nor excessive fines im- 
posed, nor cruel and unusual punishments inflicted. 

Article IX. 

The enumeration in the Constitution of certain rights shall 
not be construed to deny or disparage others retained by the 
people. 

Article X. 

The powers not delegated to the United States by the Con- 
stitution, nor prohibited by it to the States, are reserved to the 
States respectively or to the people. 

43. Chisholm, Executor, v. Georgia.'^ 

Mr. Chief Justice Jay delivered the opinion of the Court: 

The question we are now to decide has been accurately 
stated namely, is a State suable by individual citizens of an- 
other State? 

It is said that Georgia refuses to appear and answer to the 
plaintiff in this action, because she is a sovereign State, and 
therefore not liable to such actions. In order to ascertain the 
merits of this objection, let us inquire: — ist. In what sense 
Georgia is a sovereign State. 2nd. Whether suability is incom- 
patible with such sovereignty. 3rd. Whether the Constitution, 
to which Georgia is a party, authorizes such an action against her. 
ist. . . . the sovereignty of the nation is in the people of 
the nation, and the residuary sovereignty of each State in the 
people of each State. . . . 

^ Supreme Court of the United States, 1793. 2 Dallas, 419. 



FIRST AMENDMENTS 141 

2nd. The second object of inquiry now presents itself, namely, 
whether suability is compatible with State sovereignty. . . . 

If there be any such incompatibihty as is pretended, whence 
does it arise? In what does it consist? There is at least one 
strong undeniable fact against this incompatibihty, and that 
is this: Any one State in the Union may sue all the people of 
another State. It is plain then that a State may be sued, and 
hence it plainly follows that suability and State sovereignty 
are not incompatible. . . '. But why should it be more incom- 
patible that all the people of a State should be sued by one citi- 
zen, than by one hundred thousand, I cannot perceive, the 
process in both cases being ahke, and the consequences of a judg- 
ment ahke. Nor can I observe any greater inconveniences in the 
one case than in the other, except what may arise from the feel- 
ings of those who may regard a lesser number in an inferior Hght. 
But if any reliance be made on this inferiority, as an objection, 
at least one-half of its force is done away by this fact, namely, 
that it is conceded that a State may appear in this court as 
plaintiff against a single citizen as defendant; and the truth is 
that the State of Georgia is at this moment prosecuting an ac- 
tion in this court against two citizens of South Carolina. ... 

3rd. Let us now proceed to inquire whether Georgia has not, 
by being a party to the national compact, consented to be 
suable by individual citizens of another State. . . . 

The question now before us renders it necessary to pay 
particular attention to that part of the second section which 
extends the judicial power "to controversies between a State 
and citizens of another State." It is contended that this ought 
to be construed to reach none of these controversies, excepting 
those in which a State may be plaintiff. The ordinary rules for 
construction will easily decide whether those words are to be 
understood in that limited sense. 

This extension of power is remedied, because it is to settle 
controversies. It is, therefore, to be construed liberally. It is 
pohtic, wise, and good, that not only the controversies in which 
a State is plaintiff, but also those in which a State is defendant, 
should be settled; both cases, therefore, are within the reason 



142 THE FORMATION OF CONSTITUTIONS 

of the remedy; and ought to be so adjudged, unless the obvious, 
plain, and literal sense of the words forbid it. If we attend to 
the words, we find them to be express, positive, free from ambi- 
guity, and without room for such implied expressions: "The 
judicial power of the United States shall extend to contro- 
versies between a State and citizens of another State." If the 
constitution really meant to extend these powers only to those 
controversies in which a State might be plaintiff, to the ex- 
clusion of those in which citizens had demands against a State, 
it is inconceivable that it should have attempted t^ convey 
that meaning in words not only so incompetent, but also 
repugnant to it; if it meant to exclude a certain class of these 
controversies, why were they not expressly excepted; on the 
contrary, not even an intimation of such intention appears in 
any part of the constitution. It cannot be pretended that 
where citizens urge and insist upon demands against a State, 
which the State refuses to admit and comply with, that there 
is no controversy between them. If it is a controversy between 
them, then it clearly falls not only within the spirit, but the 
very words of the constitution. What is it to the cause of jus- 
tice, and how can it affect the definition of the word controversy, 
whether the demands which cause the dispute are made by a 
State against citizens of another State, or by the latter against 
the former? When power is thus extended to a controversy, 
it necessarily, as to all judicial purposes, is also extended to 
those between whom it subsists. ... 

For the reasons before given, I am clearly of opinion that 
a State is suable by citizens of another State. 

The Eleventh Amendment^ 
Article XI^ 

The judicial power of the United States shall not be con-' 
strued to extend to any suit in law or equity, commenced or , , 
prosecuted against one of the United States b}^ citizens of 
another State, or by citizens or subjects of any foreign State. 

^ This amendment went into effect January 8, 1798. Revised Statutes 
(1878), 30. 




CHAPTER XVI 

THE GOVERNMENT OF FEDERAL TERRITORIES )= ' 

The Ordinance of 1787, passed originally by the Congress of the Con- 
federacy and reenacted by the new Congress, must be reckoned among 
the great acts of constructive statesmanship of this period. It is important 
not only because it projected a form of territorial government which 
served as a model for succeeding territorial acts, but also because it re- 
newed in deiinite form the earher pledge that States carved out of this 
territory should be admitted to membership in the Union on an equal 
footing with the original States. The assurance was made doubly sure 
that Congress would not hold the Northwest as a dependency, but would 
prepare it for eventual statehood. The foundations were thus laid for the 
American process of continental colonization. 

45. The Ordinance of I'/H'/ for the Northwest Territory} 

Section i. Be it ordained by the United States in Congress 
assembled. That the said territory, for the purposes of tem- 
porary government, be one district, subject, however, to be 
divided into two districts, as future circumstances may, in the 
opinion of Congress, make it expedient. 

Sec. 2. Be it ordained by the authority aforesaid, That the 
estates both of resident and non-resident proprietors in the 
said territory, dying intestate, shall descend to, andii.be distrib- 
uted among, their children and the descendants of a deceased 
child in equal parts, the descendants of a deceased child or 
grandchild to take the share of their deceased parent in equal 
parts among them: and where there shall be no children or 
descendants, then, in equal parts to the next of kin, in equal 
degree; and among collaterals, the children of a deceased 
brother or sister of the intestate shall have, in equal parts 
among them, their deceased parent's share; and there shall, 
in no case, be a distinction between kindred of the whole and 
half blood; saving in all cases to the widow of the intestate, her 
third part of the real estate for life, and one- third part of the 
^ Revised Statutes of the United States (1878), 13-16. 



144 THE FORMATION OF CONSTITUTIONS 

personal estate; and this law relative to descents and dower, 
shall remain in full force until altered by the legislature of the 
district. And until the governor and judges shall adopt laws 
as hereinafter mentioned, estates in the said territory may be 
devised or bequeathed by wills in writing, signed and sealed 
by him or her in whom the estate may be, (being of full age^) 
and attested by three witnesses ; and real estates may be con- 
veyed by lease and release, or bargain and sale, signed, sealed, 
and delivered by the person, being of full age, in whom the 
estate may be, and attested by two witnesses, provided such 
wills be duly proved, and such conveyances be acknowledged, 
or the execution thereof duly proved, and be recorded within 
one year after proper magistrates, courts, and registers shall 
be appointed for that purpose; and personal property may be 
transferred by delivery, saving, however, to the French and 
Canadian inhabitants, and other settlers of the Kaskaskies, 
Saint Vincents, and the neighboring villages, who have here- 
tofore professed themselves citizens of Virginia, their laws and 
customs now in force among them, relative to the descent and 
conveyance of property. 

Sec. 3. Be it ordained by the authority aforesaid, That there 
shall be appointed, from time to time, by Congress, a governor, 
whose commission shall continue in force for the term of three 
years, unless sooner revoked by Congress; he shall reside in the 
district, and have a freehold estate therein in one thousand 
acres of land, while in the exercise of his office. 

Sec. 4. There shall be appointed from time to time, by Con- 
gress, a secretary, whose commission shall continue in force for 
four years, unless sooner revoked; he shall reside in the district, 
and have a freehold estate therein, in five hundred acres of 
land, while in the exercise of his office. It shall be his duty to 
keep and preserve the acts and laws passed by the legislature, 
and the public records of the district, and the proceedings of 
the governor in his executive department, and transmit authen- 
tic copies of such acts and proceedings every six months to the 
Secretary of Congress. There shall also be appointed a court, 
to consist of three judges, any two of whom to form a court. 



GOVERNMENT OF TERRITORIES 145 

who shall have a common-law jurisdiction, and reside in the 
district, and have each therein a freehold estate, in five hun- 
dred acres of land, while in the exercise of their offices ; and their 
commissions shall continue in force during good behavior. 

Sec. 5. The governor and judges, or a majority of them, shall 
adopt and publish in the district such laws of the original 
States, criminal and civil, as may be necessary, and best suited 
to the circumstances of the district, and report them to Con- 
gress from time to time, which laws shall be in force in the dis- 
trict until the organization of the general assembly therein, 
unless disapproved of by Congress ; but afterwards the legisla- 
ture shall have authority to alter them as they shall think fit. 

Sec. 6. The governor, for the time being, shall be com- 
mander-in-chief of the militia, appoint and commission all 
officers in the same below the rank of general officers ; all gen- 
eral officers shall be appointed and commissioned by Congress. 

Sec. 7. Previous to the organization of the general assembly 
the governor shall appoint such magistrates, and other civil 
officers, in each county or township, as he shall find necessary 
for the preservation of the peace and good order in the same. 
After the general assembly shall be organized the powers and 
duties of the magistrates and other civil officers shall be regu- 
lated and defined by the said assembly ; but all magistrates and 
other civil officers, not herein otherwise directed, shall, during 
the continuance of this temporary government, be appointed 
by the governor. 

Sec. 8. For the prevention of crimes and injuries, the laws to 
be adopted or made shall have force in all parts of the district, 
and for the execution of process, criminal and civil, the governor 
shall make proper divisions thereof ; and he shall proceed, from 
time to time, as circumstances may require, to lay out the parts 
of the district in which the Indian titles shall have been extin- 
guished, into counties and townships, subject, however, to 
such alterations as may thereafter be made by the legislature. 

Sec. 9. So soon as there shall be five thousand free male 
inhabitants, of full age, in the district, upon giving proof thereof 
to the governor, they shall receive authority, with time and 



146 THE FORMATION OF CONSTITUTIONS^ 

place, to elect representatives from their counties or townships, 
to represent them in the general assembly : Provided, That for 
every five hundred free male inhabitants there shall be one 
representative, and so on, progressively, with the number of 
free male inhabitants, shall the right of representation increase, 
until the number of representatives shall amount to twenty- 
five ; after which the number and proportion of representatives 
shall be regulated by the legislature : Provided, That no person 
be eligible or qualified to act as a representative, unless he shall 
have been a citizen of one of the United States three years, and 
be a resident in the district, or unless he shall have resided in 
the district three years; and, in either case, shall likewise hold 
in his own right, in fee-simple, two hundred acres of land within 
the same : Provided, also, That a freehold in fifty acres of land 
in the district, having been a citizen of one of the States, and 
being resident in the district, or the Hke freehold and two years' 
residence in the district, shall be necessary to qualify a man as 
an elector of a representative. 

Sec. io. The representatives thus elected shall serve for the 
term of two years ; and in case of the death of a representative, 
or removal from ofiice, the governor shall issue a writ to the 
county or township, for which he was a member, to elect an- 
other in his stead, to serve for the residue of the term. 

Sec. II. The general assembly, or legislature, shall consist of 
the governor, legislative council, and a house of representatives. 
The legislative council shall consist of five members, to continue 
in office five years, unless sooner removed by Congress; any 
three of whom to be a quorum; and the members of the council 
shall be nominated and appointed in the following manner, to 
wit: As soon as representatives shall be elected the governor 
shall appoint a time and place for them to meet together, and 
when met they shall nominate ten persons, residents in the 
district, and each possessed of a freehold in five hundred acres 
of land, and return their names to Congress, five of whom Con- 
gress shall appoint and commission to serve as aforesaid; and 
whenever a vacancy shall happen in the council, by death or 
removal from office, the house of representatives shall nominate 



GOVERNMENT OF TERRITORIES 147 

two persons, qualified as aforesaid, for each vacancy, and 
return their names to Congress, one of whom Congress shall 
appoint and commission for the residue of the term; and every 
five years, four months at least before the expiration of the 
time of service of the members of council, the said house shall 
nominate ten persons, qualified as aforesaid, and return their 
names to Congress, five of whom Congress shall appoint and 
commission to serve as members of the council five years, unless 
sooner removed. And the governor, legislative council, and 
house of representatives shall have authority to make laws in 
all cases for the good government of the district, not repugnant 
to the principles and articles in this ordinance established and 
declared. And all bills, having passed by a majority in the 
house, and by a majority in the council, shall be referred to the 
governor for his assent; but no bill, or legislative act whatever, 
shall be of any force without his assefit. The governor shall 
have power to convene, prorogue, and dissolve the general 
assembly when, in his opinion, it shall be expedient. 

Sec. 12. The governor, judges, legislative council, secretary, 
and such other officers as Congress shall appoint in the district, 
shall take an oath or affirmation of fidelity, and of office; the 
governor before the President of Congress, and all other officers 
before the governor. As soon as a legislature shall be formed in 
the district, the council and house assembled, in one room, shall 
have authority, by joint ballot, to elect a delegate to Congress 
who shall have a seat in Congress, with a right of debating, but 
not of voting, during this temporary government. 

Sec. 13. And for extending the fundamental principles of 
civil and rehgious liberty, which form the basis whereon these 
republics, their laws and constitutions, are erected; to fix and 
establish those principles as the basis of all laws, constitutions, 
and governments, which forever hereafter shall be formed in 
the said territory; to provide, also, for the establishment of 
States, and permanent government therein, and for their admis- 
sion to a share in the Federal councils on an equal footing with 
the original States, at as early periods as may be consistent 
with the general interest: 



148 THE FORMATION OF CONSTITUTIONS 

Sec. 14. It is hereby ordained and declared, by the authority 
aforesaid, that the following articles shall be considered as 
articles of compact, between the original States and the people 
and States in the said territory, -and forever remain unalter- 
able, unless by common consent, to wit: 

Article I. 

No person, demeaning himself in a peaceable and orderly 
manner, shall ever be molested on account of his mode of wor- 
ship, or religious sentiments, in the said territories. 

Article II. 

The inhabitants of the said territory shall always be entitled 
to the benefits of the writ of habeas corpus, and of the trial by 
jury; of a proportionate representation of the people in the 
legislature, and of judicial proceedings according to the course 
of common law. All persons shall be bailable, unless for capital 
offences, where the proof shall be evident, or the presumption 
great. All fines shall be moderate; and no cruel or unusual 
punishments shall be inflicted. No man shall be deprived of 
his liberty or property, but by the judgment of his peers, or 
the law of the land, and should the public exigencies make it 
necessary, for the common preservation, to take any person's 
property, or to demand his particular services, full compensa- 
tion shall be made for the same. And, in the just preservation 
of rights and property, it is understood and declared, that no 
law ought ever to be made or have force in the said territory, 
that shall, in any manner whatever, interfere with or affect 
private contracts, or engagements, bona fide, and without 
fraud previously formed. 

Article III. 

Religion, morality, and knowledge being necessary to good 
government and the happiness of mankind, schools and the 
means of education shall forever be encouraged. The utmost 
good faith shall always be observed towards the Indians ; their 
lands and property shall never be taken from them without 



GOVERNMENT OF TERRITORIES 149 

their consent; and in their property, rights, and liberty they 
never shall be invaded or disturbed, unless in just and lawful 
wars authorized by Congress; but laws founded in Justice and 
humanity shall, from time to time, be made, for preventing 
wrongs being done to them, and for preserving peace and friend- 
ship with them. 

Article IV. 

The said territory, and the States which may be formed 
therein, shall forever remain a part of this confederacy of the 
United States of America, subject to the Articles of Confedera- 
tion, and to such alterations therein as shall be constitutionally 
made; and to all the acts and ordinances of the United States 
in Congress assembled, conformable thereto. The inhabitants 
and settlers in the said territory shall be subject to pay a part 
of the Federal debts, contracted, or to be contracted, and a 
proportional part of the expenses of government to be appor- 
tioned on them by Congress, according to the same common 
rule and measure by which apportionments thereof shall be 
made on the other States; and the taxes for paying their pro- 
portion shall be laid and levied by the authority and direction 
of the legislatures of the district, or districts, or new States, as 
in the original States, within the time agreed upon by the 
United States in Congress assembled. The legislatures of those 
districts, or new States, shall never interfere with the primary 
disposal of the soil by the United States in Congress assembled, 
nor with any regulations Congress may find necessary for 
securing the title in such soil to the hona fide purchasers. No 
tax shall be imposed on lands the property of the United 
States; and in no case shall non-resident proprietors be taxed 
higher than residents. The navigable waters leading into the 
Mississippi and Saint Lawrence, and the carrying places be- 
tween the same, shall be common highways, and forever free, 
as well to the inhabitants of the said territory as to the citizens 
of the United States, and those of any other States that may 
be admitted into the confederacy, without any tax, impost, or 
duty therefor. 



ISO THE FORMATION OF CONSTITUTIONS 

Article V, 
There shall be formed in the said territory not less than three 
nor more than five States; and the boundaries of the States, 
as soon as Virginia shall alter her act of cession and consent to 
the same, shall become fixed and established as follows, to wit : 
. . . Provided, however, And it is further understood and de- 
clared, that the boundaries of these three States shall be sub- 
ject so far to be altered, that, if Congress shall hereafter find 
it expedient, they shall have authority to form one or two States 
in that part of the said territory which lies north of an east and 
west line drawn through the southerly bend or extreme of Lake 
Michigan. And whenever any of the said States shall have 
sixty thousand free inhabitants therein, such State shall be 
admitted, by its delegates, into the Congress of the United 
States, on an equal footing with the original States, in all 
respects whatever; and shall be at liberty to form a permanent 
constitution and State government: Provided, The constitution 
and government, so to be formed, shall be republican, and in 
conformity to the principles contained in these articles, and, so 
far as it can be consistent with the general interest of the con- 
federacy, such admission shall be allowed at an earlier period, 
and when there may be a less number of free inhabitants in the 
State than sixty thousand. 

Article VI. 

There shall be neither slavery nor involuntary servitude in 
the said territory, otherwise than in the punishment of crimes, 
whereof the party shall have been duly convicted: Provided 
always, That any person escaping into the same, from whom 
labor or service is lawfully claimed in any one of the original 
States, such fugitive may be lawfully reclaimed, and conveyed 
to the person claiming his or her labor or service as afore- 
said. ... 



PART THREE. THE ESTABLISHMENT OF 
THE FEDERAL GOVERNMENT 

CHAPTER XVn 

PRESIDENT AND CONGRESS 

The Constitution provided a framework of Federal Government. To 
Congress fell the task of providing for the proper functioning of the 
organs of government and for their inter-action. Wherever possible, 
Congress revived colonial precedents and practices. The President's 
speech at the opening of Congress was not so much an imitation of the 
British speech from the throne as a continuance of a formality to which 
colonial assemblies had long been accustomed. On the other hand, it was 
necessary to clothe the new presidential office with appropriate dignity 
and to secure for it prestige at home and abroad. Tradition suggested the 
revival of British forms and titles; but popular dislike of monarchy and 
its trappings might not be disregarded. No one expressed more faithfully 
this popular democratic spirit than Senator William Maclay of Pennsyl- 
vania, whose journal, in the absence of official records of the early debates 
in the Senate, becomes a source of prime importance. It is interesting to 
find Jefferson urging Washington to exercise the veto — a power which 
no English sovereign had used since the days of Queen Anne. 

46. The Inauguration of Washington.^ 

joth April, Thursday. — This is a great, important day. 
Goddess of Etiquette assist me while I describe it. The Sen- 
ate stood adjourned to half after eleven o'clock. About ten, 
dressed in my best clothes; went for Mr. Morris' Lodgings; 
but met his son, who told me that his father would not be in 
town until Saturday. Turned into the Hall. The crowd already 
great. The Senate met. The Vice-President rose in the most 
solemn manner. ... 

"Gentlemen: I wish for the direction of the Senate. The 
President will, I suppose, address the Congress. How shall I 
behave? How shall we receive it? Shall it be standing or sit- 
ting?" 

^ Maclay, Journal of William Maclay, 7-9. 



152 THE FEDERAL GOVERNMENT 

Here followed a considerable talk from him, which I could 
make nothing of. Mr. Lee began with the House of Commons 
(as is usual with him) , then the House of Lords ; then the King, 
and then back again. The result of his information was, that 
the Lords sat, and the Commons stood, on the delivery of the 
King's speech. Mr. Izard got up and told how often he had 
been in the House of Parliament. He said a great deal of what 
he had seen there; made, however, this sagacious discovery, 
that the Commons stood because they had no seats to sit on, 
being arrived at the House of Lords. It was discovered, after 
some time, that the King sat, too, and had his robes and crown 
on. 

Mr. Adams got up again, and said he had been very often, 
indeed, at the Parliament on those occasions, but there always 
was such a crowd, and ladies along, he could not say how it was. 
Mr. Carroll got up to declare that he thought it of no conse- 
quence how it was in Great Britain — they were no rule to us, 
&c. But all at once the Secretary, who had been out, whis- 
pered to the Chair that the Clerk from the Representatives 
was at the door with a communication. Gentlemen of the 
Senate, how shall he be received? A silly kind of resolution of 
the committee on that business had been laid on the table some 
days ago. The amount of it was, that each House should com- 
municate to the other what and how they chose; it concluded, 
however, something in this way: that everything should be 
done with all the propriety that was proper. The question was, 
Shall this be adopted, that we may know how to receive the 
Clerk? It was objected; this will throw no light on the subject; 
it will leave you where you are. Mr. Lee brought the House of 
Commons before us again. He reprobated the rule; declared 
that the Clerk should not come within the bar of the House; 
that the proper mode was for the Sergeant-at-Arms, with the 
mace on his shoulder, to meet the Clerk at the door and receive 
his communication; we are not, however, provided for this 
ceremonious way of doing business, having neither mace nor 
Sergeant, nor Masters in Chancery, who carry down bills from 
the English Lords. 



PRESIDENT AND CONGRESS 153 

Mr. Izard got up and labored unintelligibly to show the 
great distinction between a communication and a delivery of a 
thing; but he was not minded. Mr. Ellsworth showed plainly 
enough that if the Clerk was not permitted to deliver the com- 
munication, the Speaker might as well send it enclosed. Re- 
peated accounts came [that] the Speaker and Representatives 
were at the door. Confusion ensued; the members left their 
seats. Mr. Reed rose and called the attention of the Senate to 
the neglect that had been shown to Mr. Thomson, late Sec- 
retary. Mr. Lee rose to answer him ; but I could not hear one 
word he said. The Speaker was introduced, followed by the 
Representatives. Here we sat an hour and ten minutes before 
the President arrived — this delay was owing to Lee, Izard, 
and Dalton, who had stayed with us until the Speaker came in, 
instead of going to attend the President. The President ad- 
vanced between the Senate and Representatives, bowing to 
each. He was placed in the chair by the Vice-President; the 
Senate, with their President, on the right, the Speaker and 
Representatives on his left. The Vice-President rose, and 
addressed a short sentence to him. The import of it was, that 
he should now take the oath of office as President. He seemed 
to have forgot half of what he was to say, for he made a dead 
pause and stood for some time, to appearance, in a vacant 
mood. He finished with a formal bow, and the President was 
conducted out of the middle window into the gallery, and 
the oath was administered by the Chancellor. Notice that the 
business was done was communicated to the crowd by pro- 
clamation, etc., who gave three cheers, and repeated it on 
the President's bowing to them. 

As the company returned into the chamber, the President 
took the chair and the Senate and Representatives their seats. 
He rose and all rose, and addressed them. This great man was 
agitated and embarrassed more than ever he was by the leveled 
cannon or pointed musket. He trembled, and several times 
could scarce make out to read, though it must be supposed he 
had often read it before. He put part of the fingers of his left 
hand into the side of what I think the tailors call the fall of the 



154 THE FEDERAL GOVERNMENT 

breeches, changing the paper into his left [right] hand. After 
some time he then did the same with some of the fingers of his 
right hand. When he came to the words all the world, he made 
a flourish with his right hand which left rather an ungainly 
impression. I sincerely, for my part, wished all set ceremony 
in the hands of the dancing masters, and that this first of men 
had read off his address in the plainest manner, without ever 
taking his eyes from the paper ; for I felt hurt that he was not 
first in everything. He was dressed in deep brown, with metal 
buttons, with an eagle on them, white stockings, a bag, and 
sword. 

From the Hall there was a grand procession to St. Paul's 
church, where prayers were said by the Bishop. The procession 
was well conducted and without accident, as far as I have 
heard. The militia were all under arms, lined the street near 
the church, made a good figure, and behaved well. 

47. The President's Speech and the Address of the House. ^ 

House of Representatives. 
Tuesday, October 25, 1791. 

A message being received from the Senate, stating that they 
were ready to receive the Communication from the President 
of the United States, the Speaker, attended by the members 
of the House, withdrew to the Senate Chamber for the purpose 
of receiving the same. 

On the return of the members, the Speaker laid before the 
House a copy of the Speech delivered by the President. . . . 

The Speech was committed to a Committee of the Whole 

to-morrow. 

Wednesday, October 26. 

The House then went into Committee of the Whole, on the 
President's Speech, Mr. Muhlenberg in the chair. 

The Speech being read, Mr. Vining moved a resolution, of 
which the following is the purport: 

^ Annals of Congress, 2 Cong., i Sess., 143-47 passim. 



PRESIDENT AND CONGRESS 155 

^^ Resolved, That it is the opinion of this committee that an 
Address should be presented to the President of the United 
States by the House of Representatives, in answer to his Speech, 
to congratulate him on the prosperous situation of the United 
States, expressive of the approbation of the House of the wise 
and prudent measures he has pursued during their recess, in 
the execution of the duties committed to his charge; promis- 
ing speedy attention to the important and momentous objects 
recommended to their consideration, and expressing their ap- 
probation of the humane and effectual steps taken, under 
his direction, for the defence of the western frontiers." 

This resolution was objected to by Messrs. Laurance, Sedg- 
wick, Smith, of South Carolina, and Livermore, upon the prin- 
ciple, that it expressed the sense of the House upon points 
which required further information and investigation before 
the House could, with propriety, determine. . . . 

Several modifications were proposed to the resolution, which 
was finally agreed to, as follows: 

^^ Resolved, That it is the opinion of this Committee that a 
respectful address ought to be presented by the House of 
Representatives to the President of the United States, in 
answer to his Speech to both Houses of Congress at the com- 
mencement of this session, containing assurances that this 
House will take into consideration the various and important 
matters recommended to their attention." 

Mr. Madison, Mr. Laurance, and Mr. Smith, of South Caro- 
lina, were appointed a committee to prepare an Address, pur- 
suant to the resolution. ... 

Thursday, October 27. 

Mr. Madison, from the committee appointed, reported an 
Address to the President of the United States, in answer to his 
speech to both Houses of Congress; which was read, and 
ordered to be committed to a Committee of the whole House 
immediately. 

The House accordingly resolved itself into a Committee of 
the Whole House on the said Address; and, after some time 



iS6 THE FEDERAL GOVERNMENT 

spent therein, Mr. Muhlenberg reported that the committee 
had had the said Address under consideration, and made no 
amendment thereto. Whereupon, it 

Resolved, unanimously, That this House doth agree to the 
said Address, in the words following: . . . 

Resolved, That the Speaker, attended by the House, do pre- 
sent the said Address; and that Mr. Madison, Mr. Laurance, 
and Mr. Smith, of South Carolina, be a committee to wait on 
the President to know when and where it will be convenient 
for him to receive the same. ... 

Mr. Madison, from the committee appointed to wait on the 
President of the United States, to know when and where it 
will be convenient for him to receive the Address of this House, 
in answer to his Speech to both Houses of Congress, reported 
that the committee had waited on the President, who signified 
to them that it would be convenient to him to receive the said 
Address at twelve o'clock to-morrow, at his own house. 

Friday, October 28. 

The Speaker, attended by the House, then withdrew to 
the President of the United States, and there presented to him 
the Address of this House, in answer to his Speech to both 
Houses of Congress; to which the President made the following 
reply : 

Gentlemen: 

The pleasure I derive from an assurance of your attention to 
the objects I have recommended to you is doubled by your 
concurrence in the testimony I have borne to the prosperous 
condition of our public affairs. 

Relying on the sanctions of your enlightened judgment, and 
on your patriotic aid, I shall be the more encouraged in all my 
endeavors for the public weal, and particularly in those which 
may be required on my part for executing the salutary measures 
I anticipate from your present deliberations. 



PRESIDENT AND CONGRESS 157 

48. Origm of the First Veto Message.^ 

Apr. 6. [1792.] The President called on me before breakfast 
& first introduced some other matters, then fell on the repre- 
sentn bill which he had now in his possn for the loth day. I 
had before given him my opn in writing that the method of 
apportionmt was contrary to the constn. He agreed that it 
was contrary to the common understanding of that instrument, 
& to what was understood at the time by the makers of it : that 
yet it would bear the constn which the bill put, & he observed 
that the vote for & against the bill was perfectly geographical, 
a northern agt a southern vote, & he feared he should be 
thought to be taking side with a southern party. I admitted 
this motive of delicacy, but that it should not induce him to do 
wrong : urged the dangers to which the scramble for the frac- 
tionary members would always lead. He here expressed his fear 
that there would ere long, be a separation of the union ; that the 
public mind seemed dissatisfied & tending to this. He went 
home, sent for Randolph the Atty Genl. desired him to get Mr. 
Madison immediately & come to me, & if we three concurred 
in opn that he should negative the bill, he desired to hear no- 
thing more about it but that we would draw the instrument for 
him to sign. They came. Our minds had been before made up. 
We drew the instrument. Randolph carried it to him & told 
him we all concurred in it. He walked with him to the door, and 
as if he still wished to get off, he said, " & you say you approve of 
this yourself." "Yes, Sir, says Randolph I do upon my honor." 
He sent it in to the H. of Representatives instantl}^ A few of 
the hottest friends of the bill expressed passion, but the ma- 
jority were satisfied, & both in and out of doors it gave pleasure 
to have at length an instance of the negative being exercised. 

49. The Veto Message in the House of Representatives.^ 

House of Representatives. 
Thursday, April 5, 1792. 

A Message was received from the President of the United 

1 Writings of Thomas Jefferson (Ford ed.), i, 192. 

^ Annals of Congress, 2 Cong, i Sess., 539-41, passim. 



158 THE FEDERAL GOVERNMENT 

States returning to the House the bill passed by the two Houses 
entitled "An act for an Apportionment of Representatives 
among the several States according to the first Enumeration," 
and presented to the President for his approbation on Monday, 
the 26th of March; to which bill the President having made 
objections, the said objections were read, and ordered to be 
entered at large on the Journal, as follows: 

" United States, April 5, 1792. 
'^Gentlemen of the House of Representatives: 

"I have maturely considered the act passed by the two 
Houses entitled 'An act for an Apportionment of Representa- 
tives among the several States, according to the first Enumera- 
tion;' and I return it to your House, wherein it originated, with 
the following objections: 

''First. The Constitution has prescribed that Representa- 
tives shall be apportioned among the several States according 
to their respective numbers ; and there is no one proportion or 
divisor which, applied to the respective numbers of the States, 
will yield the number and allotment of Representatives pro- 
posed by the bill. 

"Second. The Constitution has also provided that the 
number of Representatives shall not exceed one for every 
thirty thousand; which restriction is by the context, and by 
fair and obvious construction, to be applied to the separate 
and respective numbers of the States ; and the bill has allotted 
to eight of the States more than one for every thirty thousand. 

" G. Washington." 

Friday, April 6. 

The House proceeded to reconsider the bill passed by the 
two Houses entitled "An act for an Apportionment of Repre- 
sentatives among the several States, according to the first 
Enumeration," which was presented for approbation on Mon- 
day, the 26th of March, and returned by the President yester- 
day, with objections. 



PRESIDENT AND CONGRESS 159 

The said bill was read, and is as follows: 

The President's objections were also read ; and, after debate 
on the subject-matter of the said bill, the question "That the 
House, on reconsideration, do agree to pass the bill," was 
determined in the mode prescribed by the Constitution of the 
United States, and passed in the negative — yeas 23, nays t,^ 
— as follows : . . , 

And so the said bill was rejected, two-thirds of the House not 
agreeing to pass the same. 

50. President Jefferson's Innovation} 

December 8, i8or. 

Sir : The circumstances under which we find ourselves at this 
place rendering inconvenient the mode heretofore practised, 
of making by personal address the first communications be- 
tween the Legislative and Executive branches, I have adopted 
that by Message, as used on all subsequent occasions through 
the session. In doing this I have had principal regard to the 
convenience of the Legislature, to the economy of their time, 
to their relief from the embarrassment of immediate answers, 
on subjects not yet fully before them, and to the benefits 
thence resulting to the public affairs. Trusting that a pro- 
cedure founded in these motives will meet their approbation, I 
beg leave, through you, sir, to communicate the enclosed Mes- 
sage, with the documents accompanying it, to the honorable 
the Senate, and pray you to accept, for yourself and them, the 
homage of my high respect and consideration. 

Th. Jefferson. 
^ Richardson, Messages and Papers of the Presidents, i, 325. 



CPIAPTER XVIII 

THE SENATE AS AN EXECUTIVE COUNCIL 

That Washington expected the Senate to act as a sort of executive 
council admits of Httle doubt. The expectation was natural. The Conven- 
tion of 1787 had expressly rejected a proposition to establish such a coun- 
cil and had associated the Senate with the President in important execu- 
tive matters. Moreover, the membership was not at lirst too large to 
permit of its acting in a confidential, advisory capacity. But almost at 
once, if we may trust Maclay's Journal, the Senate exhibited an independ- 
ence and aloofness which in the end prevented the establishment of inti- 
mate relations. 

51. Considerations on the Time, Place, and Manner of 
Consultations. ^ 

The President has the power, by and with the advice and 
consent of the Senate, to make treaties and to appoint officers. 

The Senate, when this power is exercised, is evidently a 
council only to the President, however its concurrence may be 
to his acts. It seems incident to this relation between them, 
that not only the time, but the place and manner of consult- 
ation, should be with the President. It is probable, that the 
place may vary. The indisposition or inclination of the Pre- 
sident may require, that the Senate should be summoned to 
the President's house. Whenever the government shall have 
buildings of its own, an executive chamber will no doubt be 
provided, where the Senate will generally attend the President. 
It is not impossible, that the place may be made to depend in 
some degree on the nature of the business. In the appointment 
to offices, the agency of the Senate is purely executive, and 
they may be summoned to the President. In treaties, the 
agency is perhaps as much of a legislative nature, and the busi- 
ness may possibly be referred to their deliberations in their 
legislative chamber. The occasion for this distinction will be 
lessened if not destroyed, when a chamber shall be appropri- 
ated for the joint business of the President and the Senate. 

^ August 8, 17S9. Writings of GeorgeWashington {Ford &A.),x.i,^i2>-ig. 



SENATE AS AN EXECUTIVE COUNCIL i6i 

The manner of consultation may also vary. The indisposi- 
tion of the President may supersede the mere question of con- 
veniency. The inclination or ideas of different Presidents may 
be different. The opinions, both of President and Senators, as 
to the proper manner, may be changed by experience. In some 
kinds of business it may be found best for the President to 
make his propositions orally and in person, in others by a 
written message. On some occasions it may be most conven- 
ient, that the President should attend the deliberations and 
decisions on his propositions; on others that he should not; or 
that he should not attend the whole of the time. In other cases, 
again, as in treaties of a complicated nature, it may happen, 
that he will send his propositions in writing, and consult the 
Senate in person after time shall have been allowed for consider- 
ation. Many other varieties may be suggested as to the mode 
by practice. 

If these remarks be just, it would seem not amiss, that the 
Senate should accommodate their rules to the uncertainty of 
the particular mode and place, that may be preferred, provid- 
ing for the reception of either oral or written propositions, and 
for giving their consent and advice in either the presence or 
absence of the President, leaving him free to use the mode and 
place, that may be found most eligible and accordant with 
other business, which may be before him at the time. 

52. How the President shall he received in the Senate} 

^^ Resolved, That when nominations shall be made in writing 
by the President of the United States to the Senate, a future 
day shall be assigned, unless the Senate shall direct otherwise, 
for taking them into consideration ; that when the President of 
the United States shall meet the Senate in the Senate-chamber, 
the President of the Senate shall have a chair on the floor, be 
considered as at the head of the Senate, and his chair shall be 
assigned to the President of the United States; that, when the 
Senate shall be convened by the President of the United States 

^ Resolution of the Senate, August 21, 1789. Writings of Washington 
(Ford ed.), xi, 419 n. 



i62 THE FEDERAL GOVERNMENT 

at any other place, the President of the Senate and Senators 
shall attend at the place appointed. The secretary of the Sen- 
ate shall also attend to take the minutes of the Senate; that all 
questions shall be put by the President of the Senate, either in 
the presence or absence of the President of the United States^ 
and the Senators shall signify their assent or dissent by answer- 
ing viva voce Ay or No." 

53. President and Senate in Executive Session} 

August 22d, Saturday. — Senate met, and went on the 
Coasting bill. The door-keeper soon told us of the arrival of the 
President. The President was introduced and took our Vice- 
President's chair. He rose and told us bluntly that he had 
called on us for our advice and consent to some propositions 
respecting the treaty to be held with the Southern Indians. 
Said he had brought General Knox with him, who was well 
acquainted with the business. He then turned to General 
Knox, who was seated on the left of the chair. Gen. Knox 
handed him a paper, which he handed to the President of the 
Senate, who was seated on a chair on the floor to his right. 
Our Vice-President hurried over the paper. Carriages were 
driving past, and such a noise, I could tell it was something 
about Indians, but was not master of one sentence of it. Signs 
were made to the door-keeper to shut down the sashes. Seven 
heads, as we since have learned, were stated at the end of the 
paper, which the Senate were to give their advice and consent 
to. They were so framed that this could be done by aye or no. 

The President told us that a paper from an agent of the Chero- 
kees was given to him just as he was coming to the Hall. He 
motioned to Gen. Knox for it, and handed it to the President 
of the Senate. It was read. It complained hard of the unjust 
treatment of the people of North CaroHna, &c., their violation 
of treaties, &c. Our Vice-President now read ofl the first article, 
to which our advice and consent was requested. It referred 
back principally to some statements in the body of the writing 
which had been read. 

^ Maclay, Journal oj William Maclay, 128-33 passim. 



SENATE AS AN EXECUTIVE COUNCIL 163 

Mr. Morris rose. Said the noise of carriages had been so 
great that he really could not say that he had heard the body 
of the paper which had been read, and prayed it might be read 
again. It was so. 

It was no sooner read, than our Vice-President immediately 
read the first head over again, and put the question, Do you 
advise and consent, &c.? There was a dead pause. Mr. Morris 
whispered me, "We will see who will venture to break silence 
first." 

Our President was proceeding: "As many as — " 

I rose reluctantly, indeed, and from the length of the pause, 
the hint given by Mr. Morris, and the proceeding of our Vice- 
President, it appeared to me that if I did not, no other one 
would, and we should have these advices and consents ravished, 
in a degree, from us. 

Mr. President: The paper which you have now read to us 
appears to have for its basis sundry treaties and public trans- 
actions between the Southern Indians and the United States 
and the States of Georgia, North Carolina, and South Carolina. 
The business is new to the Senate. It is of importance. It is 
our duty to inform ourselves, as well as possible, on the sub- 
ject. I therefore call for the reading of the treaties and other 
documents alluded to in the paper before us. 

I cast an eye at the President of the United States. I saw he 
wore an aspect of stern displeasure. General Knox turned up 
some of the acts of Congress, and the protests of one Blount, 
agent for North Carolina. Mr. Lee rose and named aparticular 
treaty, which he wished read. The business labored with the 
Senate. There appeared an evident reluctance to proceed. 
The first article was about the Cherokees. It was hinted that 
the person just come from there might have more information. 
The President of the United States rose ; said he had no objec- 
tion to that article being postponed, and in the meantime he 
would see the messenger. 

The second article, which was about the Chickasaws and 
Choctaws, was likewise postponed. The third article more 
immediately concerned Georgia and the Creeks. Mr. Gunn, 



i64 THE FEDERAL GOVERNMENT 

from Georgia, moved that this be postponed till Monday. He 
was seconded by Mr. Few. General Knox was asked when 
General Lincoln would be here on his way to Georgia. He 
answered not until Saturday next. The whole House seemed 
against Gunn and Few. I rose, and said; When I considered 
the newness and importance of the subject, that one article 
had already been postponed; that General Lincoln, the first 
named of the commissioners, would not be here for a week; the 
deep interest Georgia had in this affair, — I could not think it 
improper that the Senators from that State should be indulged 
in a postponement until Monday; and more especially as I had 
not heard any inconvenience pointed out that could possibly 
flow from it. 

The question was put, and actually carried; but Ellsworth 
immediately began a long discourse on the merits of the busi- 
ness. He was answered by Lee, who appealed to the Constitu- 
tion with regard to the power of making war. Butler and 
Izard answered, and Mr. Morris at last informed the disputants 
that they were debating on a subject that was actually post- 
poned. Mr. Adams denied, in the face of the House, that it 
had been postponed. This very trick has been played by him 
and his New England men more than once. The question was, 
however, put a second time, and carried. 

I had, at an early stage of the business, whispered Mr. 
Morris that I thought the best way to conduct the business 
was to have all the papers committed. My reasons were that 
I saw no chance of a fair investigation of subjects while the 
President of the United States sat there, with his Secretary of 
War to support his opinions, and overawe the timid and neutral 
part of the Senate. Mr. Morris hastily rose, and moved that 
the papers communicated to the Senate by the President of 
the United States should be referred to a committee of five, 
to report as soon as might be on them. He was seconded by 
Mr. Gunn. Several members grumbled some objections. Mr. 
Butler rose; made a lengthy speech against commitment; said 
we were acting as a council. No council ever committed any- 
thing. Committees were an improper mode of doing business; 



SENATE AS AN EXECUTIVE COUNCIL 165 

it threw business out of the hands of the many into the hands 
of the few, &c. 

I rose, and supported the mode of doing business by com- 
mittees; that committees were used in all pubKc deliberative 
bodies, &c. I thought I did the subject justice, but concluded 
the commitment cannot be attended with any possible incon- 
venience. Some articles are already postponed until Monday. 
Whoever the committee are, if committed, they must make 
their report on Monday morning. I spoke through the whole 
in a low tone of voice. Peevishness itself, I think, could not 
have taken offense at anything I said. 

As I sat down, the President of the United States started up 
in a violent fret. " This defeats every purpose of my coming Jiere,^' 
were the first words that he said. He then went on that he had 
brought his Secretary at War with him to give every necessary 
information; that the Secretary knew all about the business, 
and yet he was delayed, and could not go on with the matter. 
He cooled, however, by degrees. Said he had no objection to 
putting off this matter until Monday, but declared he did not 
understand the matter of commitment. He might be delayed ; 
he could not tell how long. 

He rose a second time, and said he had no objection to 
postponement until Monday at ten o'clock. By the looks of 
the Senate, this seemed agreed to. A pause for sometime en- 
sued. We waited for him to withdraw. He did so, with a dis- 
contented air. Had it been any other than the man who I wish 
to regard as the first character in the world, I would have 
said, with sullen dignity. 

August 24th, Monday. — The Senate met. The President of 
the United States soon took his seat, and the business began. 
The President wore a different aspect from what he did Satur- 
day. He was placid and serene, and manifested a spirit of 
accommodation;- declared his consent that his questions should 
be amended. A tedious debate took place on the third article. I 
was called on by Mr. Lee, of Virginia, to state something 
respecting the treaty held by Permsylvania. This brought me 



i66 THE FEDERAL GOVERNMENT 

up. I did not speak long, but endeavored to be as pointed as 
possible. The third article consisted of two questions. The 
first I was for, I disliked the second, but both were carried. 
The fourth article consisted of sundry questions. I moved 
pointedly for a division. Got it. Voted for the first, and op- 
posed the second part. A long debate ensued, which was 
likely to end only in words. I moved to have the words " in 
failure thereof by the United States," struck out, and al- 
though Ellsworth, Wyngate, and Dalton had spoke on the 
same side with-me, yet I was not seconded. My colleague 
had in private declared himself of my opinion also. It was 
an engagement that the United States would pay the stip- 
ulated purchase money for Georgia, in case Georgia did not. 
The arguments I used on this subject were so plain, I need 
not set them down. Yet a shamefacedness, or I know not 
what, flowing from the presence of the President, kept every- 
body silent. 

The next clause was for a free port on the Altamaha or St. 
Mary's river. This produced some debate, and the President 
proposed "secure" port in place of "free" port. Agreed to. 
Now followed something of giving the Indians commissions, 
on their taking the oaths to Government. It was a silly affair, 
but it was carried without any debate. Now followed a clause, 
whether the cession of lands should be made an ultimatum 
with the Creeks. There was an alternative in case this should 
be negatived; but, strange to tell, the Senate negatived both, 
when it was plain one only should have been so. A boundary 
was named by a following clause which the commissioners were 
to adhere to. Money and honorary commissions to be given to 
the Indians. The old treaty with the Creeks, Choctaws, and 
Chickasaws, made the basis of the future treaty, though none 
of them were read to us, nor a single principle of them explained, 
(but it was late.) The twenty thousand dollars applied to this 
treaty, if necessary. This closed the business. The President 
of the United States withdrew, and the Senate adjourned. 

Just as the Senate had fairly entered on business, I was 



SENATE AS AN EXECUTIVE COUNCIL 167 

called out by the door-keeper to speak to Col. Humphreys. It 
was to invite me to dinner with the President^ on Thursday 
next, at four o'clock. I really was surprised at the invitation. 
It will be my duty to go; however, I will make no inferences 
whatever. I am convinced all the dinners he can now give, or 
ever could, will make no difference in my conduct. Perhaps he 
knew not of my being in town. Perhaps he has changed his 
mind of me. I was long enough in town, however, before my 
going home. It is a thing, of course, and of no consequence; 
nor shall it have any with me. 



CHAPTER XIX 

THE APPOINTING AND REMOVING POWER OF THE 
PRESIDENT 

The following extracts are from a debate in the House of Representa- 
tives, during the first session of Congress, on the bill to establish a depart- 
ment of foreign affairs, the head of which was to be appointed by the 
President "by and with the advice and consent of the Senate, and to be 
removable by the President." Both the constitutionality and the expe- 
diency of vesting the power of removal in the President alone were ques- 
tioned. The debate was occasioned by a motion to strike out the clause 
"to be removable by the President." In the end a majority concurred in 
conceding the power to the President alone, but hesitated to appear to 
grant the power in a legislative act. The objectionable clause was stricken 
out, after an amendment had been adopted which stated that "whenever 
said principal officer shall be removed by the President," the chief clerk 
should perform his duties. The various arguments used by his opponents 
are summarized by Madison; the views of White were held by a consid- 
erable minority. 

54. Delate on the EstaUishment of a Secretaryship of Foreign 

A fairs} 

Mr. White. — The constitution gives the President the 
power of nominating, and, by and with the advice and consent 
of the Senate, appointing to office. As I conceive the power of 
appointing and dismissing to be united in their natures, and a 
principle that never was called in question in any Government, 
I am averse to that part of the clause which subjects the Sec- 
retary of Foreign Affairs to be removed at the will of the Presi- 
dent. In the constitution, special provision is made for the 
removal of the judges; that I acknowledge to be a deviation 
from my principle; but as it is a constitutional provision, it is 
to be admitted. In all cases not otherwise provided for in the 
constitution, I take it, that the principle I have laid down is 
the governing one. Now the constitution has associated the 

^ House of Representatives, June 16-17, 1789. Annals of Congress, 
I Cong., I Sess., 473-521 passim. 



APPOINTING AND REMOVING POWER 169 

Senate with the President, in appointing the heads of depart- 
ments. The Secretary of Foreign Affairs is the head of a de- 
partment; for the words of the law declare, that there shall be 
a department established, at the head of which shall be an 
officer to be so denominated. If, then, the Senate are associated 
with the President in the appointment, they ought also to be 
associated in the dismission from office. . . . 

I differ also with my colleague in the principle that he has 
laid down, that this is in its nature an executive power. The 
constitution supposes power incident to Government, and 
arranges it into distinct branches, with or without checks; but 
it enumerates under each department the powers it may exer- 
cise. The Legislature may exert its authority in passing laws 
relating to any of its particular powers. The executive power 
is vested in the President; but the executive powers so vested, 
are those enumerated in the constitution. He may nominate, 
and, by and with the advice and consent of the Senate, appoint 
all officers, because the constitution gives this power, and not 
because the power is in its nature a power incident to his de- 
partment. My ideas of the legislative and executive powers 
are precisely the same. The Legislature may do certain acts 
because the constitution says they shall have power to do them, 
and the Executive Magistrate is authorized to exercise powers 
because they are vested in him by the same instrument. It has 
given him the power of appointment under certain qualifica- 
tions ; the power of removal is incident to the power of appoint- 
ment, and both equally dependent upon the arrangement made 
in the constitution; consequently, a dismission from office must 
be brought about by the same modification as the appointment. 

Mr. Madison. — I feel the importance of the question, and 
know that our decision will involve the decision of all similar 
cases. The decision that is at this time made, will become the 
permanent exposition of the constitution; and on a permanent 
exposition of the constitution will depend the genius and 
character of the whole Government. . . . Another doctrine, 
which has found very respectable friends, has been particularly 
advocated by the gentleman from South Carolina, (Mr. Smith). 



I70 THE FEDERAL GOVERNMENT 

It is this: when ar officer is appointed by the President and 
Senate, he can only be displaced for malfeasance in his office 
by impeachment. I think this would give a stability to the 
executive department, so far as it may be described by the 
heads of departments, which is more incompatible with the 
genius of republican Governments in general, and this consti- 
tution in particular, than any doctrine which has yet been 
proposed. The danger to liberty, the danger of mal-adminis- 
tration, has not yet been found to lie so much in the facility 
of introducing improper persons into office, as in the difficulty 
of displacing those who are unworthy of the public trust. If it 
is said, that an officer once appointed shall not be displaced 
without the formality required by impeachment, I shall be 
glad to know what security we have for the faithful admin- 
istration of the Government? Every individual, in the long 
chain which extends from the highest to the lowest link of the 
Executive Magistracy, would find a security in his situation 
which would relax his fidelity and promptitude in the dis- 
charge of his duty. 

The doctrine, however, which seems to stand most in oppo- 
sition to the principles I contend for, is, that the power to annul 
an appointment is, in the nature of things, incidental to the 
power which makes the appointment. I agree that if nothing 
more was said in the constitution than that the President, by 
and with the advice and consent of the Senate, should appoint 
to office, there would be great force in saying that the power 
of removal resulted by a natural implication from the power of 
appointing. But there is another part of the constitution, no 
less explicit than the one on which the gentleman's doctrine is 
founded; it is that part which declares that the executive power 
shall be vested in a President of the United States. The associ- 
ation of the Senate with the President in exercising that partic- 
ular function, is an exception to this general rule; and excep- 
tions to general rules, I conceive, are ever to be taken strictly. 
But there is another part of the constitution which inclines, 
in my judgment, to favor the construction I put upon it; the 
President is required to take care that the laws be faithfully 



APPOINTING AND REMOVING POWER 171 

executed. If the duty to see the laws faithfully executed be 
required at the hands of the Executive Magistrate, it would 
seem that it was generally intended he should have that species 
of power which is necessary to accomplish that end. Now, if the 
officer when once appointed is not to depend upon the Pre- 
sident for his official existence, but upon a distinct body, (for 
where there are two negatives required, either can prevent the 
removal,) I confess I do not see how the President can take 
care that the laws be faithfully executed. It is true, by a cir- 
cuitous operation, he may obtain an impeachment, and even 
without this it is possible he may obtain the concurrence of the 
Senate for the purpose of displacing an officer; but would this 
give that species of control to the Executive Magistrate which 
seems to be required by the constitution? I own, if my opinion 
was not contrary to that entertained by what I suppose to be 
the minority on this question, I should be doubtful of being 
mistaken, when I discovered how inconsistent that construc- 
tion would make the constitution with itself. I can hardly 
bring myself to imagine the wisdom of the convention who 
framed the constitution contemplated such incongruity. 

There is another maxim which ought to direct us in expound- 
ing the constitution, and is of great importance. It is laid down, 
in most of the constitutions or bills of rights in the republics 
of America; it is to be found in the political writings of the most 
celebrated civilians, and is every where held as essential to the 
preservation of liberty, that the three great departments of 
Government be kept separate and distinct; and if in any case 
they are blended, it is in order to admit a partial qualification, 
in order more effectually to guard against an entire consolida- 
tion. I think, therefore, when we review the several parts of 
this constitution, when it says that the legislative powers shall 
be vested in a Congress of the United States under certain 
exceptions, and the executive power vested in the President 
with certain exceptions, we must suppose they were intended 
to be kept separate in all cases in which they are not blended, 
and ought, consequently, to expound the constitution so as to 
blend them as little as possible. 



172 THE FEDERAL GOVERNMENT 

Every thing relative to the merits of the question as distin- 
guished from a constitutional question, seems to turn on the 
danger of such a power vested in the President alone. But when 
I consider the checks under which he lies in the exercise of this 
power, I own to you I feel no apprehensions but what arise 
from the dangers incidental to the power itself ; for dangers will 
be incidental to it, vest it where you please. I will not reiter- 
ate what was said before with respect to the mode of election, 
and the extreme improbability that any citizen will be selected 
from the mass of citizens who is not highly distinguished by his 
abilities and worth ; in this alone we have no small security for 
the faithful exercise of this power. But, throwing that out of 
the question, let us consider the restraints he will feel after he 
is placed in that elevated station. It is to be remarked, that 
the power in this case will not consist so much in continuing a 
bad man in office, as in the danger of displacing a good one. 
Perhaps the great danger, as has been observed, of abuse in 
the executive power, lies in the improper continuance of bad 
men in office. But the power we contend for will not enable 
him to do this; for if an unworthy man be continued in office 
by an unworthy President, the House of Representatives can 
at any time impeach him, and the Senate can remove him, 
whether the President chooses or not. The danger then con- 
sists merely in this: the President can displace from office a 
man whose merits require that he should be continued in it. 
What will be the motives which the President can feel for such 
abuse of his power, and the restraints that operate to prevent 
it? In the first place, he will be impeachable by this House, 
before the Senate, for such an act of mal-administration ; for I 
contend that the wanton removal of meritorious officers would 
subject him to impeachment and removal from his own high 
trust. But what can be his motives for displacing a worthy 
man? It must be that he may fill the place with an unworthy 
creature of his own. Can he accomplish this end? No; he can 
place no man in the vacancy whom the Senate shall not ap- 
prove; and if he could fill the vacancy with the man he might 
choose, I am sure he would have little inducement to make an 



APPOINTING AND REMOVING POWER 173 

improper removal. Let us consider the consequences. The 
injured man will be supported by the popular opinion; the com- 
munity will take side with him against the President; it will 
facilitate those combinations, and give success to those exer- 
tions which will be pursued to prevent his re-election. To dis- 
place a man of high merit, and who from his station may 
be supposed a man of extensive influence, are considerations 
which will excite serious reflections beforehand in the mind of 
any man who may fill the Presidential chair. The friends of 
those individuals and the public sympathy will be against him. 
If this should not produce his impeachment before the Senate, 
it will amount to an impeachment before the community, who 
will have the power of punishment, by refusing to re-elect him. 
But suppose this persecuted individual cannot obtain revenge 
in this mode ; there are other modes in which he could make the 
situation of the President very inconvenient, if you suppose 
him resolutely bent on executing the dictates of resentment. 
If he had not influence enough to direct the vengeance of the 
whole community, he may probably be able to obtain an 
appointment in one or the other branch of the Legislature; and 
being a man of weight, talents, and influence, in either case he 
may prove to the President troublesome indeed. We have 
seen examples in the history of other nations, which justifies 
the remark I now have made. Though the prerogatives of the 
British King are great as his rank, and it is unquestionably 
known that he has a positive influence over both branches of 
the legislative body, yet there have been examples in which 
the appointment and removal of ministers have been found to 
be dictated by one or other of those branches. Now if this be 
the case with an hereditary Monarch, possessed of those high 
prerogatives and furnished with so many means of influence; 
can we suppose a President, elected for four years only, depend- 
ent upon the popular voice, impeachable by the Legislature, 
little, if at all, distinguished for wealth, personal talents, or 
influence from the head of the department himself; I say, will 
he bid defiance to all these considerations, and wantonly dis- 
miss a meritorious and virtuous ofi&cer? Such abuse of power 



174 THE FEDERAL GOVERNMENT 

exceeds my conception. If any thing takes place in the ordin- 
ary course of business of this kind, my imagination cannot 
extend to it on any rational principle. But let us not consider 
the question on one side only ; there are dangers to be contem- 
plated on the other. Vest this power in the Senate jointly with 
the President, and you abolish at once that great principle of 
unity and responsibility in the executive department, which 
was intended for the security of liberty and the public good. 
If the President should possess alone the power of removal from 
office, those who are employed in the execution of the law will 
be in their proper situation, and the chain of dependence be 
preserved; the lowest officers, the middle grade, and the high- 
est, will depend, as they ought, on the President, and the 
President on the community. The chain of dependence there- 
fore terminates in the supreme body, namely, in the people, 
who will possess, besides, in aid of their original power, the 
decisive engine of impeachment. Take the other supposition; 
that the power should be vested in the Senate, on the principle 
that the power to displace is necessarily connected with the 
power to appoint. It is declared by the constitution, that we 
may by law vest the appointment of inferior officers in the 
heads of departments; the power of removal being incidental, 
as stated by some gentlemen. Where does this terminate? If 
you begin with the subordinate officers, they are dependent on 
their superior, he on the next superior, and he on — whom? 
On the Senate, a permanent body, a body, by its particular 
mode of election, in reality existing forever; a body possessing 
that proportion of aristocratic power which the constitution 
no doubt thought wise to be estabhshed in the system, but 
which some have strongly excepted against. And let me ask 
gentlemen, is there equal security in this case as in the other? 
Shall we trust the Senate, responsible to individual Legisla- 
tures, rather than the person who is responsible to the whole 
community? It is true, the Senate do not hold their offices for 
life, like aristocracies recorded in the historic page; yet the 
fact is, they will not possess that responsibility for the exercise 
of Executive powers which would render it safe for us to vest 



APPOINTING AND REMOVING POWER 175 

such powers in them. But what an aspect will this give to the 
Executive? Instead of keeping the departments of Govern- 
ment distinct, you make an Executive out of one branch of the 
Legislature; you make the Executive a two-headed monster, 
to use the expression of the gentleman from New Hampshire, 
(Mr. Livermore,) you destroy the great principle of responsi- 
bility, and perhaps have the creature divided in its will, de- 
feating the very purposes for which a unity in the Executive 
was instituted. These objections do not lie against such an 
arrangement as the bill establishes. I conceive that the Presi- 
dent is sufficiently accountable to the community ; and if this 
power is vested in him, it will be vested where its nature 
requires it should be vested ; if any thing in its nature is exec- 
utive, it must be that power which is employed in superintend- 
ing and seeing that the laws are faithfully executed. The laws 
cannot be executed but by officers appointed for that purpose ; 
therefore, those who are over such officers naturally possess 
the executive power. If any other doctrine be admitted, what 
is the consequence? You may set the Senate at the head of the 
executive department, or you may require that the officers 
hold their places during the pleasure of this branch of the 
Legislature, if you cannot go so far as to say we shall appoint 
them; and by this means, you link together two branches of 
the Government which the preservation of liberty requires to 
be constantly separated. 

Another species of argument has been urged against this 
clause. It is said, that it is improper, or at least unnecessary, 
to come to any decision on this subject. It has been said by 
one gentleman, that it would be officious in this branch of the 
Legislature to expound the constitution, so far as it relates to 
the division of power between the President and Senate; it is 
incontrovertibly of as much importance to this branch of the 
Government as to any other, that the constitution should be 
preserved entire. It is our duty, so far as it depends upon us, to 
take care that the powers of the constitution be preserved 
entire to every department of Government; the breach of the 
constitution in one point, will facilitate the breach in another; 



176 THE FEDERAL GOVERNMENT 

a breach in this point may destroy that equilibrium by which 
the House retains its consequence and share of power; there- 
fore we are not chargeable with an officious interference. Be- 
sides, the bill, before it can have effect, must be submitted to 
both those branches who are particularly interested in it; the 
Senate may negative, or the President may object, if he thinks 
it unconstitutional. 

But the great objection drawn from the source to which the 
last arguments would lead us is, that the Legislature itself 
has no right to expound the constitution; that wherever its 
meaning is doubtful, you must leave it to take its course, until 
the Judiciary is called upon to declare its meaning. I acknow- 
ledge, in the ordinary course of Government, that the exposi- 
tion of the laws and constitution devolves upon the Judiciary. 
But, I beg to know, upon what principle it can be contended, 
that any one department draws from the constitution greater 
powers than another, in marking out the limits of the powers 
of the several departments? The constitution is the charter of 
the people to the Government; it specifies certain great powers 
as absolutely granted, and marks out the departments to 
exercise them. If the constitutional boundary of either be 
brought into question, I do not see that any one of these inde- 
pendent departments has more right than another to declare 
their sentiments on that point. 

Perhaps this is an omitted case. There is not one Govern- 
ment on the face of the earth, so far as I recollect, there is not 
one in the United States, in which provision is made for a 
particular authority to determine the limits of the constitu- 
tional division of power between the branches of the Govern- 
ment. In all systems there are points which must be adjusted 
by the departments themselves, to which no one of them is 
competent. If it cannot be determined in this way, there is no 
resource left but the will of the community, to be collected in 
some mode to be provided by the constitution, or one dictated 
by the necessity of the case. It is therefore a fair question, 
whether this great point may not as well be decided, at least 
by the whole Legislature as by a part, by us as well as by the 



APPOINTING AND REMOVING POWER 177 

Executive or Judiciary? As I think it will be equally constitu- 
tional, I cannot imagine it will be less safe, that the exposition 
should issue from the legislative authority than any other; and 
the more so, because it involves in the decision the opinions of 
both those departments, whose powers are supposed to be 
affected by it. Besides, I do not see in what way this question 
could come before the judges, to obtain a fair and solemn 
decision; but even if it were the case that it could, I should 
suppose, at least while the Government is not led by passion, 
disturbed by faction, or deceived by any discolored medium 
of sight, but while there is a desire in all to see and be guided 
by the benignant ray of truth, that the decision may be made 
with the most advantage by the Legislature itself. 



CHAPTER XX 

CONGRESS AND THE TREASURY DEPARTMENT 

"Nations in general," wrote Hamilton in the Federalist, "even under 
governments of the most popular kind, usually commit the administra- 
tion of their finances to single men or to boards composed of a few individ- 
uals, who digest and prepare in the first instance the plans of taxation 
which are afterwards passed into laws." The bill to establish a treasury 
department was drawn in accordance with these ideas. That Hamilton 
would be the first incumbent of the office was generally taken for granted. 
His well-known partiality for British institutions may have caused the 
misgivings of those who opposed the bill in its first form. They were dis- 
inclined to make Alexander Hamilton an American chancellor of the 
exchequer. A comparison of the act establishing the Treasury Depart- 
ment with the acts creating other departments indicates that a direct 
responsibility of the Secretary to Congress was expected. The want of an 
explicit declaration of responsibility caused succeeding incumbents of the 
office much embarrassment, until President Jackson established the prin- 
ciple of presidential direction and control. 

55. Debate on the Establishment of a Secretaryship of Treasury} 

Mr. Page objected to the words making it the duty of the 
Secretary to ''digest and report plans for the improvement and 
management of the revenue, and the support of the public 
credit;" observing that it might be well enough to enjoin upon 
him the duty of making out and preparing estimates ; but to go 
any further would be dangerous innovation upon the constitu- 
tional privilege of this House; it would create an undue influ- 
ence within these walls, because members might be led, by the 
deference commonly paid to men of abilities, who give an 
opinion in a case they have thoroughly studied, to support 
the minister's plan, even against their own judgment. Nor 
would the mischief stop here; it would establish a precedent 
which might be extended, until we admitted all the ministers 
of the Government on the floor, to explain and support the 

^ House of Representatives, June 25, 1789. Annals of Congress, 1 
Cong., I Sess., 616-31 passim. 



CONGRESS AND THE TREASURY 179 

plans they have digested and reported: thus laying a founda- 
tion for an aristocracy or a detestable monarchy. 

Mr. Tucker. — The objection made by the gentleman near 
me is, undoubtedly, well founded. I think it proper to strike 
out all the words alluded to, because the following are sufficient 
to answer every valuable purpose, namely, "to prepare and 
report estimates of the public revenue and public expenditures." 
If we authorize him to prepare and report plans, it will create 
an interference of the executive with the legislative powers; it 
will abridge the particular privilege of this House; for the con- 
stitution expressly declares, that all bills for raising revenue 
shall originate in the House of Representatives. How can the 
business originate in this House, if we have it reported to us 
by the Minister of Finance? All the information that can be 
required, may be called for, without adopting a clause that 
may undermine the authority of this House, and the security 
of the people. The constitution has pointed out the proper 
method of communication between the executive and legisla- 
tive departments ; it is made the duty of the President to give, 
from time to time, information to Congress of the state of the 
Union, and to recommend to their consideration such measures 
as he shall judge necessary and expedient. If revenue plans 
are to be prepared and reported to Congress, here is the proper 
person to do it; he is responsible to the people for what he 
recommends, and will be more cautious than any other person 
to whom a less degree of responsibihty is attached. Under this 
clause, you give the Secretary of the Treasury a right to 
obtrude upon you plans, not only undigested, but even im- 
proper to be taken up. 

I hope the House is not already weary of executing and sus- 
taining the powers vested in them by the constitution ; and yet 
it would argue that we thought ourselves less adequate to 
determine than any individual what burthens our constituents 
are equal to bear. This is not answering the high expectations 
that were formed of our exertions for the general good, or of 
our vigilance in guarding our own and the people's rights. In 
short, Mr. Chairman, I can never agree to have money bills 



i8o THE FEDERAL GOVERNMENT 

originated and forced upon this House by a man destitute of 
legislative authority; while the constitution gives such power 
solely to the House of Representatives; for this reason, I 
cheerfully second the motion for striking out the words. 

Mr. Page. — I can never consent to establish, by law, this 
interference of an executive officer in business of legislation; it 
may be well enough in an absolute monarchy, for a minister 
to come to a Parliament with his plans in his hands, and order 
them to be enregistered or enacted; but this practice does not 
obtain even in a limited monarchy like Britain. The minister 
there, who introduces his plans, must be a member of the House 
of Commons. The man would be treated with indignation, 
who should attempt in that country to bring his schemes before 
Parliament in any other way. Now, why we, in the free repub- 
lic of the United States, should introduce such a novelty in 
legislation, I am at a loss to conceive. . . . 

Mr. Ames. — • It has been complained of as a novelty; but, 
let me ask gentlemen, if it is not to an institution of a similar 
kind that the management of the finances of Britain is the envy 
of the world? It is true, the Chancellor of the Exchequer is a 
member of the House that has the sole right of originating 
money bills ; but is that a reason why we should not have the 
information which can be obtained from our officer, who pos- 
sesses the means of acquiring equally important and useful 
knowledge? The nation, as well as the Parliament of Britain, 
holds a check over the Chancellor : if his budget contains false 
calculations, they are corrected; if he attempts impositions, 
or even unpopular measures, his administration becomes 
odious, and he is removed. Have we more reason to fear than 
they? Have we less responsibihty or security in our arrange- 
ment of the Treasury department? If we have, let us improve 
it, but not abridge it of its safest and most useful power. I 
hope the committee will refuse their approbation of the present 
motion. 

Mr. Sedgwick. — If the principle prevails for curtailing 
this part of the Secretary's duty, we shall lose the advantages 
which the proposed system was intended to acquire. The im- 



CONGRESS AND THE TREASURY i8i 

provement and management of the revenue is a subject that 
must be investigated by a man of abilities and indefatigable 
industry, if we mean to have our business advantageously done. 
If honorable gentlemen will for a moment consider the peculiar 
circumstances of this country, the means of information attain- 
able by the individual members of this House, and compare 
them with the object they have to pursue, they will plainly 
perceive the necessity of calling to their aid the advantages 
resulting from an establishment like the one contemplated in 
the bill; if they weigh these circumstances carefully, their 
objections, I trust, will vanish. Coming, Mr. Chairman, as we 
do, from different parts of the Union, from States where the 
objects of revenue are different, where the circumstances and 
views of the people are different, and in a great degree local, 
it appears to me that no one member can be so fortunate as 
to possess the extensive knowledge attainable by this officer. 
Another circumstance induces me to draw the same conclusion. 
We shall find systems adopted to defeat the collection of the 
revenue, but it will be impossible for any of us to become so 
well acquainted with these machinations as to defeat their 
object; but from the advantageous position we give the Sec- 
retary of the Treasury, and the multifarious objects of his atten- 
tion, he may watch over and detect their plans; he will have a 
better capacity to propose a remedy than any member of the 
Legislature. 

I do not apprehend any undue influence operating on the 
members of this House, because I am persuaded there will ever 
prevail an independent and indignant spirit within the walls of 
Congress, hostile to every venal attempt. Nor do I believe it 
possible to color, with a semblance of justice, either false or 
base measures against the public welfare; the wisdom of this 
House can never be thought so meanly of. I trust a majority 
will always be found wise and virtuous enough to resist being 
made the tools of a corrupt administration. I, therefore, with 
confidence, approve the object of the clause. 

I will mention one other circumstance, of no inconsiderable 
force, in favor of the bill. Coming, as I said we do, from dis- 



i82 THE FEDERAL GOVERNMENT 

tricts with different ideas, perhaps different objects to pursue, 
much time will necessarily be consumed before a current is 
found in which the mind of the majority will run ; and even 
then, gentlemen will not be certain they have procured all the 
information that could be obtained. It appears, therefore, to 
me, from the reason and nature of things, to be our duty, as 
wise legislators, to form such a reservoir for information as will 
supply us with what is necessary and useful at all times. 

Mr. Boudinot. — A proper jealousy for the liberty of the 
people is commendable in those who are appointed and sworn 
to be its faithful guardians; but when this spirit is carried so 
far as to lose sight of its object, and instead of leading to avoid, 
urges on to the precipice of ruin, we ought to be careful how we 
receive its impressions. So far is the present measure from 
being injurious to liberty, that it is consistent with the true 
interest and prosperity of the community. Are gentlemen 
apprehensive we shall be led by this officer to adopt plans we 
should otherwise reject? For my part, I have a better opinion 
of the penetration of the representation of the people than to 
dread any such visionary phantom. 

Let us consider whether this power is essentially necessary 
to the Government. I take it to be conceded by the gentlemen, 
that it is absolutely so. They say they are willing to receive the 
information because it may be serviceable, but do not choose 
to have it communicated in this way. If the Secretary of the 
Treasury is the proper person to give the information, I can 
see no other mode of obtaining it that would be so useful. Do 
gentlemen mean that he shall give it piecemeal, by way of 
question and answer? This will tend more to mislead than to 
inform us. If we would judge upon any subject, it would be 
better to have it in one clear and complete view, than to inspect 
it by detachments; we should lose the great whole in the 
minutiae, and, instead of a system, should present our con- 
stituents with a structure composed of discordant parts, 
counteracting and defeating the operation of each other's 
properties. 

Make your officer responsible, and the presimiption is, that 



CONGRESS AND THE TREASURY 183 

plans and information are properly digested; but if he can 
secrete himself behind the curtain, he might create a noxious 
influence, and not be answerable for the information he gives. 
I conceive this great principle of responsibility to be essentially 
necessary to secure the public welfare: make it his duty to 
study the subject well, and put the means in his power ; we can 
then draw from him all the information he has acquired, and 
apply it to its proper use. Without such an officer, our plans 
will be ineffectual and inconsistent. I have seen too much the 
want of a like officer in the State Legislatures, not to make me 
very desirous of adopting the present plan. It has been said, 
that the members coming from the different parts of the Union 
are the most proper persons to give information. I deny the 
principle. There are no persons in the Government to whom 
we could look with less propriety for information on this sub- 
ject than to the members of this House. We are called from 
the pursuit of our different occupations, and come without 
the least preparation to bring forward a subject that requires 
a great degree of assiduous application to understand ; add to 
this the locality of our ideas, which is too commonly the case, 
and we shall appear not very fit to answer the end of our 
appointment. Witness the difficulty and embarrassments with 
which we have hitherto been surrounded. If we had the subject 
digested and prepared, we should determine with ease on its 
fitness, its combination, and its principles, and might supply 
omissions or defects without hazard ; and this in half the time 
we could frame a system, if left to reduce the chaos into order. 

Mr. Gerry expressed himself in favor of the object of the 
clause; that was, to get all the information possible for the 
purpose of improving the revenue, because he thought this 
information would be much required, if he judged from the 
load of public debt, and the present inability of the people to 
contribute largely toward its reduction. 

He could not help observing, however, the great degree of 
importance they were giving this, and the other executive 
officers. If the doctrine of having prime and great ministers of 
state was once well established, he did not doubt but we should 



i84 THE FEDERAL GOVERNMENT 

soon see them distinguished by a green or red ribbon, or other 
insignia of court favor and patronage. He wished gentlemen 
were aware of what consequences these things lead to, that 
they might exert a greater degree of caution. 

The practice of Parliament in Britain is first to determine 
the sum they will grant, and then refer the subject to a Com- 
mittee of Ways and Means; this might be a proper mode to be 
pursued in this House. 

Do gentlemen, said he, consider the importance of the power 
they give the officer by the clause? Is it not part of our legis- 
lative authority? And does not the constitution expressly 
declare that the House solely shall exercise the power of origin- 
ating revenue bills? Now, what is meant by reporting plans ? 
It surely includes the idea of originating money bills, that is, a 
bill for improving the revenue, or, in other words, for bringing 
revenue into the treasury. For if he is to report plans, they 
ought to be reported in a proper form, and complete. This is 
giving an indirect voice in legislative business to an executive 
officer. . . . 

Mr. Page's motion for striking out the clause being put and 
negatived : 

The question on Mr. Fitzsimons's motion to amend the bill, 
by striking out the word report, and inserting prepare, was 
taken and carried by a great majority. 

56. Power of the House over Heads of Departments.^ 

Mar. 31. A meeting at the P[resident]'s, present Th: J.[ef- 
ferson], A. H.[amilton], H. K.[nox], & E. R.[andolph]. The 
subject was the resoln of the H, of Repr. of Mar. 27. to appt a 
commee to inquire into the causes of the failure of the late 
expdn under Maj. Genl. St. Clair with power to call for such 
persons, papers & records as may be necessary to assist their 
inquiries. The commee had written to Knox for the original 
letters, instns, &c. The President he had called us to consult, 
merely because it was the first example, & he wished that so 
far as it shd become a precedent, it should be rightly conducted. 

^ Jefferson's ^?za5. Writings of Thomas Jefferson (Forded.),!, iSg-go. 



CONGRESS AND THE TREASURY 185 

He neither acknowledged nor denied, nor even doubted the 
propriety of what the house were doing, for he had not thought 
upon it, nor was acquainted with subjects of this kind. He 
could readily conceive there might be papers of so secret a 
nature as that they ought not to be given up. — We were not 
prepared & wished time to think & enquire. 

Apr. 2. Met again at P's on same subject. We had all con- 
sidered and were of one mind i . that the house was an inquest, 
& therefore might institute inquiries. 2. that they might call 
for papers generally. 3. that the Executive ought to communi- 
cate such papers as the pubHc good would permit, & ought to 
refuse those the disclosure of which would injure the public. 
Consequently were to exercise a discretion. 4. that neither the 
commee nor House had the right to call on the head of a 
deptmt, who & whose papers were under the Presidt. alone, 
but that the commee shd instruct their chairman to move the 
house to address the President. . . . Hamilt. agrd with us in 
all these points except as to the power of the house to call on 
heads of departmts. He observed that as to his departmt the 
act constituting it had made it subject to Congress in some 
points, but he thot himself not so far subject as to be obliged 
to produce all papers they might call for. They might demand 
secrets of a very mischievous nature. Here I thot he began to 
fear they would go to examining how far their own members 
& other persons in the govmt had been dabbling in stocks, 
banks &c., and that he probably would choose in this case to 
deny their power & in short he endeavd. to place himself sub- 
ject to the house when the Executive should propose what he 
should not like, & subject to the Executive, when the house 
shd propose anything disagreeable. I observed here a differ- 
ence between the Brit pari & our Congress, that the former 
was a legislature, an inquest, & a council for the king. The 
latter was by the constn a legislature & an inquest but not a 
council. Finally agreed to speak separation [sic] to the mem- 
bers of the commee & bring them by persuasion into the right 
channel. It was agreed in this case that there was not a paper 
which might not be properly produced, that copies only should 



1 86 THE FEDERAL GOVERNMENT 

be sent, with an assurance that if they should desire it, a clerk 
should attend with the originals to be verified by them- 
selves. . . . 

57. Reports of the Secretary of Treasury} 

... By the law constituting the Treasury Department, it is 
enacted that the Secretary shall lay before Congress or either 
House such reports, documents, &c., as he may be directed 
from time to time. Hence the invariable practice has been to 
call for financial information directly on the Treasury Depart- 
ment, except in the case of loans, where the authority had been 
given by the President; and for information respecting Army, 
Navy, or State Department, the application is always to the 
President, requesting him to direct, &c. The distinction, it is 
presumable, has been made in order to leave Congress a direct 
power, uncontrolled by the Executive, on financial documents 
and information as connected with money and revenue sub- 
jects. It would at present be much more convenient to follow 
a different course ; if instead of six or seven reports called for by 
the standing orders of one or the other House, I could throw 
them all into one, to be made to you, it would unite the advan- 
tages of simphcity and perspicuity to that of connection with 
the reports made by the other Departments, as all might then 
be presented to Congress through you and by you; but I fear 
that it would be attacked as an attempt to dispense with the 
orders of the Houses or of Congress if the usual reports were 
not made in the usual manner to them; and if these are still 
made, it becomes useless for you to communicate duphcates. 
. . . Quere, whether this remarkable distinction, which will be 
found to pervade all the laws relative to the Treasury Depart- 
ment, was not introduced to that extent in order to give to Mr. 
Hamilton a department independent of every executive con- 
trol? It may be remembered that he claimed under those laws 
the right of making reports and proposing reforms, &c., with- 
out being called on for the same by Congress. This was a 

^ Gallatin to Jefferson, November, 1801. Henry Adams, Writings of 
Albert Gallatin, i, 66-67. 



CONGRESS AND THE TREASURY 187 

Presidential power, for by the Constitution the President is to 
call on the Departments for information, and has alone the 
power of recommending. But in the present case, see the Act 
supplementary to the Act establishing the Treasury Depart- 
ment, passed in 1800. 



CHAPTER XXI 

THE WHISKEY INSURRECTION 

The ejctreme concern with which the administration viewed the resist- 
ance of western Pennsylvania to the excise is expressed without reserve 
in the letters which passed between the President and his Secretary of the 
Treasury. As administrative head of the revenue officers, Hamilton had 
information which led him to fear lest the local disorders might assume 
the proportions of a rebellion. In that event, he thought public opinion 
quite as likely to support the rebels as to rally to the aid of the Federal 
Government. The Federal Government, indeed, seemed to be on trial. 
The scrupulous care of the President to use the military only as an ad- 
junct to the civil authorities, appears both in his proclamations and in the 
instructions conveyed by Hamilton to Governor Lee. 

58. Proclamation of August 7, 1794.^ 

Whereas combinations to defeat the execution of the laws 
laying duties upon spirits distilled within the United States 
and upon stills have from the time of the commencement of 
those laws existed in some of the western parts of Pennsylvania; 
and 

Whereas the said combinations, proceeding in a manner 
subversive equally of the just authority of government and 
of the rights of individuals, have hitherto effected their danger- 
ous and criminal purpose by the influence of certain irregular 
meetings whose proceedings have tended to encourage and up- 
hold the spirit of opposition by misrepresentations of the laws 
calculated to render them odious; by endeavors to deter those 
who might be so disposed from accepting ofi&ces under them 
through fear of public resentment and of injury to person and 
property, and to compel those who had accepted such offices 
by actual violence to surrender or forbear the execution of 
them ; by circulating vindictive menaces against all those who 
should otherwise, directly or indirectly, aid in the execution 
of the said laws, or who, yielding to the dictates of conscience 
^ Richardson, Messages and Papers of the Presidents, i, 158-60. 



THE WHISKEY INSURRECTION 189 

and to a sense of obligation, should themselves comply there- 
with ; by actually injuring and destroying the property of per- 
sons who were understood to have so complied; by inflicting 
cruel and humiliating punishments upon private citizens for 
no other cause than that of appearing to be the friends of the 
laws ; by intercepting the public officers on the highways, abus- 
ing, assaulting, and otherwise ill treating them; by going to 
their houses in the night, gaining admittance by force, taking 
away their papers, and committing other outrages, employing 
for these unwarrantable purposes the agency of armed banditti 
disguised in such manner as for the most part to escape dis- 
covery; and 

Whereas the endeavors of the Legislature to obviate objec- 
tions to the said laws by lowering the duties and by other alter- 
ations conducive to the convenience of those whom they 
immediately affect (though they have given satisfaction in 
other quarters), and the endeavors of the executive officers to 
conciliate a compliance with the laws by explanations, by for- 
bearance, and even by particular accommodations founded on 
the suggestion of local considerations, have been disappointed 
of their effect by the machinations of persons whose industry 
to excite resistance has increased with every appearance of a 
disposition among the people to relax in their opposition and 
to acquiesce in the laws, insomuch that many persons in the 
said western parts of Pennsylvania have at length been hardy 
enough to perpetrate acts which I am advised amount to trea- 
son, being overt acts of levying war against the United States, 
the said persons having on the i6th and 17th July last past 
proceeded in arms (on the second day amounting to several 
hundreds) to the house of John Neville, inspector of the reve- 
nue for the fourth survey of the district of Pennsylvania; 
having repeatedly attacked the said house with the persons 
therein, wounding some of them; having seized David Lenox, 
marshal of the district of Pennsylvania, who previous thereto 
had been fired upon while in the execution of his duty by a 
party of armed men, detaining him for some time prisoner, 
till for the preservation of his life and the obtaining of his 



I90 THE FEDERAL GOVERNMENT 

liberty he found it necessary to enter into stipulations to for- 
bear the execution of certain official duties touching processes 
issuing out of a court of the United States; and having finally 
obliged the said inspector of the said revenue and the said mar- 
shal from considerations of personal safety to fly from that 
part of the country, in order, by a circuitous route, to proceed 
to the seat of Government, avowing as the motives of these 
outrageous proceedings an intention to prevent by force of 
arms the execution of the said laws, to oblige the said inspector 
of the revenue to renounce his said office, to withstand by open 
violence the lawful authority of the Government of the United 
States, and to compel thereby an alteration in the measures of 
the Legislature and a repeal of the laws aforesaid ; and 

Whereas by a law of the United States entitled "An act to 
provide for calling forth the militia to execute the laws of 
the Union, suppress insurrections, and repel invasions," it is 
enacted "that whenever the laws of the United States shall be 
opposed or the execution thereof obstructed in any State by 
combinations too powerful to be suppressed by the ordinary 
course of judicial proceedings or by the powers vested in the 
marshals by that act, the same being notified by an associate 
justice or the district judge, it shall be lawful for the President 
of the United States to call forth the militia of such State to 
suppress such combinations and to cause the laws to be duly 
executed. And if the militia of a State where such combina- 
tions may happen shall refuse or be insufficient to suppress 
the same, it shall be lawful for the President, if the Legislature 
of the United States shall not be in session, to call forth and 
employ such numbers of the militia of any other State or 
States most convenient thereto as may be necessary; and the 
use of the militia so to be called forth may be continued, if 
necessary, until the expiration of thirty days after the com- 
mencement of the ensuing session: Provided always, That 
whenever it may be necessary in the judgment of the President 
to use the military force hereby directed to be called forth, 
the President shall forthwith, and previous thereto, by pro- 
clamation, command such insurgents to disperse and retire 



THE WHISKEY INSURRECTION 191 

peaceably to their respective abodes within a limited time," 
and 

Whereas James Wilson, an associate justice, on the 4th 
instant, by writing under his hand, did from evidence which 
had been laid before him notify to me that "in the counties 
of Washington and Allegany, in Pennsylvania, laws of the 
United States are opposed and the execution thereof obstructed 
by combinations too powerful to be suppressed by the ordinary 
course of judicial proceedings or by the powers vested in the 
marshal of that district;" and 

Whereas it is in my judgment necessary under the circum- 
stances of the case to take measures for calling forth the mihtia 
in order to suppress the combinations aforesaid, and to cause 
the laws to be duly executed; and I have accordingly deter- 
mined so to do, feeling the deepest regret for the occasion, but 
withal the most solemn conviction that the essential interests 
of the Union demand it, that the very existence of Govern- 
ment and the fundamental principles of social order are materi- 
ally involved in the issue, and that the patriotism and firmness 
of all good citizens are seriously called upon, as occasions may 
require, to aid in the effectual suppression of so fatal a spirit: 

Wherefore, and in pursuance of the proviso above recited, I, 
George Washington, President of the United States, do hereby 
command all persons being insurgents as aforesaid, and all 
others whom it may concern, on or before the ist day of Sep- 
tember next to disperse and retire peaceably to their respec- 
tive abodes. And I do moreover warn all persons whomsoever 
against aiding, abetting, or comforting the perpetrators of the 
aforesaid treasonable acts, and do require all officers and other 
citizens, according to their respective duties and the laws of the 
land, to exert their utmost endeavors to prevent and suppress 
such dangerous proceedings. . . . 

59. Proclamation of September 25, 1794.^ 

Whereas from a hope that the combinations against the Con- 
stitution and laws of the United States in certain of the western 
^ Richardson, Messages and Papers of the Presidents, i, 161-62. 



192 THE FEDERAL GOVERNMENT 

counties of Pennsylvania would yield to time and reflection 
I thought it sufficient in the first instance rather to take meas- 
ures for calling forth the militia than immediately to embody 
them, but the moment is now come when the overtures of for- 
giveness, with no other condition than a submission to law, 
have been only partially accepted; when every form of concili- 
ation not inconsistent with the being of Government has been 
adopted without effect; when the well-disposed in those coun- 
ties are unable by their influence and example to reclaim the 
wicked from their fury, and are compelled to associate in their 
own defense; when the proffered lenity has been perversely 
misinterpreted into an apprehension that the citizens will 
march with reluctance; when the opportunity of examining 
the serious consequences of a treasonable opposition has been 
employed in propagating principles of anarchy, endeavoring 
through emissaries to alienate the friends of order from its 
support, and inviting its enemies to perpetrate similar acts of 
insurrection; when it is manifest that violence would continue 
to be exercised upon every attempt to enforce the laws; when, 
therefore, Government is set at defiance, the contest being 
whether a small portion of the United States shall dictate to 
the whole Union, and, at the expense of those who desire peace, 
indulge a desperate ambition: 

Now, therefore, I, George Washington, President of the 
United States, in obedience to that high and irresistible duty 
consigned to me by the Constitution "to take care that the 
laws be faithfully executed," deploring that the American 
name should be sullied by the outrages of citizens on their 
own Government, commiserating such as remain obstinate 
from delusion, but resolved, in perfect refiance on that gracious 
Providence which so signally displays its goodness towards 
this country, to reduce the refractory to a due subordination 
to the law, do hereby declare and make known that, with a 
satisfaction which can be equaled only by the merits of the 
militia summoned into service from the States of New Jersey, 
Pennsylvania, Maryland, and Virginia, I have received intelli- 
gence of their patriotic alacrity in obeying the call of the 



THE WHISKEY INSURRECTION 193 

present, though painful, yet commanding necessity; that a 
force which, according to every reasonable expectation, is 
adequate to the exigency is already in motion to the scene of 
disaffection; that those who have confided or shall confide in 
the protection of Government shall meet full succor under the 
standard and from the arms of the United States; that those 
who, having offended against the laws, have since entitled them- 
selves to indemnity will be treated with the most liberal good 
faith if they shall not have forfeited their claim by any subse- 
quent conduct, and that instructions are given accordingly. 

And I do moreover exhort all individuals, officers, and bodies 
of men to contemplate with abhorrence the measures leading 
directly or indirectly to those crimes which produce this resort 
to military coercion; to check in their respective spheres the 
efforts of misguided or designing men to substitute their mis- 
representation in the place of truth and their discontents in 
the place of stable government, and to call to mind that, as the 
people of the United States have been permitted, under the 
Divine favor, in perfect freedom, after solemn deliberation, 
and in an enlightened age, to elect their own government, so 
will their gratitude for this inestimable blessing be best dis- 
tinguished by firm exertions to maintain the Constitution and 
the laws. 

And, lastly, I again warn all persons whomsoever and where- 
soever not to abet, aid, or comfort the insurgents aforesaid, as 
they will answer the contrary at their peril; and I do also 
require all officers and other citizens, according to their several 
duties, as far as may be in their power, to bring under the 
cognizance of the laws all offenders in the premises. . . . 

60. Instructions to Governor Lee.^ 

"Bedford, 20th October, 1794. 

"Sir: — I have it in special instruction from the President 
of the United States, now at this place, to convey to you, on 
his behalf, the following instructions, for the general direcl^on 

^ Brackenridge, History of the Western Insurrection, 283-85. 



194 THE FEDERAL GOVERNMENT 

of your conduct, in command of the militia army, with which 
you are charged. . . . 

"The objects of the military force are two-fold: 

"i. To overcome any armed opposition which may exist. 

"2. To countenance and support the civil officers in the 
means of executing the laws. 

"With a view to the first of these two objects, you may 
proceed as speadily as may be with the army under your com- 
mand, into the insurgent counties, to attack, and as far as 
shall be in your power, subdue all persons whom you may 
find in arms, in opposition to the laws above mentioned. You 
will march your army in two columns, from the places where 
they are now assembled, by the most convenient routes, having 
regard to the nature of the roads, the convenience of supply, 
and the facility of cooperation and union, and bearing in mind 
that you ought to act until the contrary shall be fully devel- 
oped, on the general principle of having to contend with the 
whole force of the counties of Fayette, Westmoreland, Wash- 
ington and Allegheny, and of that part of Bedford which lies 
westward of the town of Bedford; and that you are to put as 
little as possible to hazard. . . . 

"When arrived within the insurgent country, if an armed 
opposition appear, it may be proper to publish a proclamation 
inviting all good citizens, friends to the constitution and laws, 
to join the standard of the United States. If no armed opposi- 
tion exist, it may still be proper to publish a proclamation, 
exhorting to a peaceful and dutiful demeanor, and giving 
assurances of performing, with good faith and liberality, what- 
soever may have been promised by the commissioners, to 
those who have complied with the conditions prescribed by 
them, and who have not forfeited their title by subsequent 
misdemeanor. 

"Of these persons in arms, if any, whom you may make 
prisoners ; leaders, including all persons in command, are to be 
delivered to the civil magistrates; the rest to be disarmed, 
admonished, and sent home, (except such as may have been 
particularly violent, and also influential,) causing their own 



THE WHISKEY INSURRECTION 195 

recognizances for their good behavior to be taken, in the cases 
which it may be deemed expedient. 

"With a view to the second point, namely, the countenance 
and support of the civil officers in the means of executing their 
laws : you will make such dispensations as shall appear proper, 
to countenance and protect, and if necessary, and required by 
them, to support and aid the civil officers in the execution of 
their respective duties ; for bringing offenders and delinquents 
to justice; for seizing the stills of delinquent distillers, as far 
as the same shall be deemed eligible by the supervisor of the 
revenue, or chief officers of inspection; and also for conveying 
to places of safe custody such persons as may be apprehended 
and not admitted to bail. 

"The objects of judiciary process and other civil proceedings 
shall be : 

"i. To bring offenders to justice. 

"2. To enforce penalties on delinquent distillers by suit. 

"3. To enforce the penalties of forfeiture on the same per- 
sons by the seizure of their stills and spirits. 

" The better to effect these purposes, the Judge of the district, 
Richard Peters, Esq., and the Attorney of the district, William 
Rawl, Esq., accompany the army. 

"You are aware that the Judge cannot be controlled in his 
functions. But I count on his disposition to cooperate in such 
a general plan, as shall appear to you consistent with the 
policy of the case. But your method of giving direction to 
proceedings, according to your general plan, will be by in- 
structions to the district attorney. 

" He ought particularly to be instructed (with due regard 
to time and circumstances,) ist, To procure to be arrested all 
influential actors in riots and unlawful assemblies, relating to 
the insurrection and combination to resist the laws; or having 
for object to abet that insurrection and these combinations; 
and who shall not have complied with the terms offered by the 
commissioners, or manifested their repentance in some other 
way, which you may deem satisfactory. 2d. To cause process 
to issue, for enforcing penalties on delinquent distillers. 3d. 



196 THE FEDERAL GOVERNMENT 

To cause offenders who may be arrested, to be conveyed to 
jails where there will be no danger of rescue — those for mis- 
demeanors to the Jails of York and Lancaster — those for 
capital offenses to the jail of Philadelphia, as more secure than 
the others. 4th. Prosecute indictable offenses in the court of 
the United States; those for penalties, or delinquents, under 
the laws before mentioned, in the courts of Pennsylvania. 

"As a guide in the case, the District Attorney has with him 
a list of the persons who have availed themselves of the offers 
of the commissioners on the day appointed. 

"The seizure of stills is of the province of the supervisor, 
and other officers of inspection. It is difficult to chalk out a 
precise line concerning it. There are opposite considerations 
which will require to be nicely balanced, and which must be 
judged of by those officers on the spot. It may be useful to 
confine the seizure of stills to the most leading and refractory 
distillers. It may be advisable to extend them far into the most 
refractory county. . . . 

"You are to exert yourself by all possible means to preserve 
discipline amongst the troops, particularly a scrupulous regard 
to the rights of persons and property, and a respect for the 
authority of the civil magistrates, taking especial care to incul- 
cate, and cause to be observed this principle — that the duties 
of the army are confined to attacking and subduing of armed 
opponents of the laws, and to the supporting and aiding of the 
civil officers in the execution of their functions. 

"It has been settled that the Governor of Pennsylvania will 
be second, the Governor of New Jersey third in command; and 
that the troops of the several States in line, on the march, and 
upon detachment, are to be posted according to the rule which 
prevailed in the army during the late war, namely, in moving 
toward the seaboard, the most southern troops will take the 
right — in moving toward the north, the most northern troops 
will take the right. . . . 

" With great respect, I have the honor to be. Sir, 
"Your obedient servant, 

"Alexander Hamilton." 



CHAPTER XXII 

THE PART OF THE HOUSE IN TREATY-MAKING 

Upon the ratification of the Jay Treaty by the Senate, the opposition 
in the House sought to compass its defeat by withholding the necessary 
legislation to carry it into effect. It was asserted that the House, while 
not a part of the treaty-making agency of the Government, might 
properly call upon the President for papers relative to a treaty, in order 
wisely to exercise its discretionary power of providing — or not provid- 
ing — for the execution of the terms of a treaty. These contentions were 
ably presented by Gallatin. The supporters of the administration were 
sustained by Washington's vigorous message. The claims of the House 
were finally recorded in the Blount Resolutions, and have never been 
formally relinquished. 

6i. Debate in the House of Representatives on the Jay Treaty.^ 

On the second of March, [1796,] Mr. Livingston, after stating 
that the late British Treaty must give rise in the House to some 
very important and constitutional questions, to throw light 
upon which every information would be required, laid the fol- 
lowing resolution upon the table. 

'^Resolved, That the President of the United States be 
requested to lay before this House a copy of the instructions 
to the Minister of the United States, who negotiated the Treaty 
with the King of Great Britain, communicated by his Message 
of the first of March, together with the correspondence and 
other documents relative to the said Treaty." 

March 7. — Mr. Livingston said he wished to modify the 
resolution he had laid on the table, requesting the President to 
lay before the House sundry documents respecting the Treaty. 
It was calculated to meet the suggestions of gentlemen to whose 
opinions he paid the highest respect, and was founded in the 
reflection that the negotiations on the twelfth article were 
probably unfinished; and therefore, he said, a disclosure of 
papers relative to that or any other pending negotiation, might 
^ Annals of Congress, 4 Cong., i Sess., 426-772 passim. 



198 THE FEDERAL GOVERNMENT 

embarrass the Executive. He wished, therefore, to add, at the 
end of his former motion, the following words: "Excepting 
such of said papers as any existing negotiation may render 
improper to be disclosed." 

The motion of Mr. Livingston was then taken up. ... 

Mr. Gallatin conceived that, whether the House had a dis- 
cretionary power with respect to Treaties, or whether they 
were absolutely bound by those instruments, and were obliged 
to pass laws to carry them fully into effect, still there was no 
impropriety in calling for the papers. Under the first view of 
the subject, if the House has a discretionary power, then no 
doubt could exist that the information called for is proper; 
and, under the second, if bound to pass laws, they must have a 
complete knowledge of the subject, to learn what laws ought to 
be passed. This latter view of the subject, even, must intro- 
duce a discussion of the Treaty, to know whether any law ought 
to be repealed, or to see what laws ought to be passed. If any 
article in the instrument should be found of doubtful import, 
the House would most naturally search for an explanation, in 
the documents which related to the steps which led to the 
Treaty. If one article of the Treaty only be doubtful, the 
House would not know how to legislate without the doubt 
being removed, and its explanation could certainly be found 
nowhere with so much propriety as in the correspondence be- 
tween the negotiating parties. 

Gentlemen had gone into an examination of an important 
constitutional question upon this motion. He hoped this would 
have been avoided in the present stage of the business; but as 
they had come forward on that ground, he had no objection 
to follow them in it, and to rest the decision of the constitutional 
powers of Congress on the fate of the present question. He would, 
therefore, state his opinion, that the House had a right to ask 
for the papers proposed to be called for, because their co-oper- 
ation and sanction was necessary to carry the Treaty into full 
effect, to render it a binding instrument, and to make it, pro- 
perly speaking, a law of the land ; because they had a full dis- 



THE HOUSE IN TREATY-MAKING 199 

cretion either to give or to refuse that co-operation; because 
they must be guided, in the exercise of that discretion, by the 
merits and expediency of the Treaty itself, and therefore had 
a right to ask for every information which could assist them in 
deciding that question. 

One argument repeatedly used by every gentleman opposed 
to the present motion was, "That the Treaty was unconstitu- 
tional or not ; if not, the House had no agency in the business, 
but must carry it into full effect; and if unconstitutional, the 
question could only be decided from the face of the instrument, 
and no papers could throw Ught upon the question." He wished 
gentlemen had defined what they understood by a constitu- 
tional Treaty; for, if the scope of their arguments was referred 
to, it would not be found possible to make an unconstitutional 
treaty. He would say what he conceived constituted the 
unconstitutionality of a treaty. A treaty is unconstitutional if 
it provides for doing such things, the doing of which is forbidden 
by the Constitution; but if a treaty embraces objects within 
the sphere of the general powers delegated to the Federal 
Government, but which have been exclusively and specially 
granted to a particular branch of Government, say to the 
Legislative department, such a Treaty, though not unconsti- 
tutional, does not become the law of the land until it has 
obtained the sanction of that branch. In this case, and to this 
end, the Legislature have a right to demand the documents 
relative to the negotiation of the Treaty, because that Treaty 
operates on objects specially delegated to the Legislature. He 
turned to the Constitution. It say^ that the President shall 
have the power to make Treaties, by and with the advice and 
consent of two-thirds of the Senate. It does not say what 
Treaties. If the clause be taken by itself, then it grants an au- 
thority altogether undefined. But the gentlemen quote another 
clause of the Constitution, where it is said that the Constitution, 
and the laws made in pursuance thereof, and all Treaties, are 
the supreme law of the land ; and thence, they insist that Treaties 
made by the President and Senate are the supreme law of the 
land, and that the power of making Treaties is undefined and 



200 THE FEDERAL GOVERNMENT 

unlimited. He proceeded to controvert this opinion, and con- 
tended that it was Hmited by other parts of the Constitution. 

The power of making Treaties is contended to be undefined, 
then it might extend to all subjects which may properly become 
the subjects of national compacts. But, he contended, if any 
other specific powers were given to a different branch of the 
Government, they must limit the general powers ; and, to make 
the compact valid, it was necessary that, as far as those powers 
clashed with the general, that the branch holding the specific 
should concur and give its sanction. If still it is insisted that 
Treaties are the supreme law of the land, the Constitution and 
laws are also ; and it may be asked, which shall have the prefer- 
ence? Shall a Treaty repeal a law or a law a Treaty? Neither 
can a law repeal a Treaty, because a Treaty is made with the 
concurrence of another party — a foreign nation — that has 
no participation in framing the law : nor can a Treaty made by 
the President and Senate repeal a law, for the same reason, 
because the House of Representatives have a participation in 
making the law. It is a sound maxim in Government, that it 
requires the same power to repeal a law that enacted it. If so, 
then it follows that laws and Treaties are not of the same 
nature; that both operate as the law of the land, but under 
certain limitations ; both are subject to the control of the Con- 
stitution ; they are made not only by different powers, but those 
powers are distributed, under different modifications, among 
the several branches of the Government. Thus no law could 
be made by the Legislature giving themselves power to execute 
it; and no Treaty by the Executive, embracing objects specific- 
ally assigned to the Legislature without their assent. 

To what, he asked, would a contrary doctrine lead? If the 
power of making Treaties is to reside in the President and Sen- 
ate unlimitedly : in other words, if, in the exercise of this power, 
the President and Senate are to be restrained by no other 
branch of the Government, the President and Senate may 
absorb all Legislative power — the Executive has, then, 
nothing to do but to substitute a foreign nation for the House 
of Representatives, and they may legislate to any extent. If 



THE HOUSE IN TREATY-MAKING 201 

the Treaty-making power is unlimited and undefined, it may 
extend to every object of legislation. Under it money may 
be borrowed, as well as commerce regulated; and why not 
money appropriated? For, arguing as the gentlemen do, they 
might say the Constitution says that no money shall be drawn 
from the Treasury but in consequence of appropriations made 
by law. But Treaties, whatever provision they may contain, 
are law; appropriations, therefore, may be made by Treaties. 
Then it would have been the shortest way to have carried the 
late Treaty into effect by the instrument itself, by adding to 
it another article, appropriating the necessary sums. By what 
provision of the Constitution is the Treaty-making power, 
agreeably to the construction of the gentlemen, limited? Is it 
limited by the provisions with respect to appropriations? Not 
more so than by the other specific powers granted to the Legis- 
lature. Is it limited by any law past? If not, it must embrace 
every thing, and all the objects of legislation. If not limited by 
existing laws, or if it repeals the laws that clash with it, or if 
the Legislature is obliged to repeal the laws so clashing, then 
the Legislative power in fact resides in the President and Sen- 
ate, and they can, by employing an Indian tribe, pass any law 
under the color of Treaty. Unless it is allowed that either the 
power of the House over the purse-strings is a check, or the 
existing laws cannot be repealed by a Treaty, or that the special 
powers granted to Congress limit the general power of Treaty- 
making, there are no bounds to it, it must absorb all others, 
repeal all laws in contravention to it, and act without control. 
To the construction he had given to this part of the Constitu- 
tion, no such formidable objections could be raised. He did not 
claim for the House a power of making Treaties, but a check 
upon the Treaty-making power — a mere negative power; 
whilst those who are in favor of a different construction advo- 
cate a positive and unHmited power. ... 

March 30. — The following Message was received from the 
President in answer to the resolution of the House :^ 
^ The Resolution was adopted by a vote of 62 to 37. 



202 THE FEDERAL GOVERNMENT 

Gentlemen of the House of Representatives: 

With the utmost attention I have considered your resolu- 
tion of the 24th instant, requesting me to lay before your House 
a copy of the instructions to the Minister of the United States, 
who negotiated the Treaty with the King of Great Britain, 
together with the correspondence and other documents rela- 
tive to that Treaty, excepting such of the said papers as any 
existing negotiation may render improper to be disclosed. 

In deliberating upon this subject, it was impossible for me 
to lose sight of the principle which some have avowed in its 
discussion, or to avoid extending my views to the consequences 
which must flow from the admission of that principle. 

I trust that no part of my conduct has ever indicated a dis- 
position to withhold any information which the Constitution 
has enjoined upon the President, as a duty, to give, or which 
could be required of him by either House of Congress as a right ; 
and, with truth, I affirm, that it has been, as it will continue 
to be, while I have the honor to preside in the Government, 
my constant endeavor to harmonize with the other branches 
thereof, so far as the trust delegated to me by the people of the 
United States, and my sense of the obligation it imposes, to 
"preserve, protect, and defend the Constitution," will permit. 

The nature of foreign negotiations requires caution ; and their 
success must often depend on secrecy; and even, when brought 
to a conclusion, a full disclosure of all the measures, demands, 
or eventual concessions which may have been proposed or 
contemplated would be extremely impolitic; for this might 
have a pernicious influence on future negotiation; or produce 
immediate inconveniences, perhaps danger and mischief, in 
relation to other Powers. The necessity of such caution and 
secrecy was one cogent reason for vesting the power of making 
Treaties in the President with the advice and consent of the 
Senate; the principle on which the body was formed confining 
it to a small number of members. To admit, then, a right in 
the House of Representatives to demand, and to have, as a 
matter of course, all the papers respecting a negotiation with a 
foreign Power, would be to establish a dangerous precedent. 



THE HOUSE IN TREATY-MAKING 203 

It does not occur that the inspection of the papers asked for 
can be relative to any purpose under the cognizance of the 
House of Representatives, except that of an impeachment; 
which the resolution has not expressed. I repeat, that I have 
no disposition to withhold any information which the duty of 
my station will permit, or the public good shall require; to be 
disclosed; and, in fact, all the papers affecting the negotiation 
with Great Britain were laid before the Senate, when the Treaty 
itself was communicated for their consideration and advice. 

The course which the debate has taken on the resolution of 
the House, leads to some observations on the mode of making 
Treaties under the Constitution of the United States, 

Having been a member of the General Convention, and 
knowing the principles on which the Constitution was formed, 
I have ever entertained but one opinion on this subject, and 
from the first establishment of the Government to this moment, 
my conduct has exemplified that opinion, that the power of 
making Treaties is exclusively vested in the President, by and 
with the advice and consent of the Senate, provided two- 
thirds of the Senators present concur; and that every Treaty so 
made, and promulgated, thenceforward becomes the law of the 
land. It is thus that the Treaty-making power has been under- 
stood by foreign nations, and in all the Treaties made with 
them, we have declared, and they have believed, that when 
ratified by the President, with the advice and consent of the 
Senate, they became obligatory. In this construction of the 
Constitution every House of Representatives has heretofore 
acquiesced, and until the present time not a doubt or suspicion 
has appeared to my knowledge that this construction was not 
the true one. Nay, they have more than acquiesced; for until 
now, without controverting the obligation of such Treaties, 
they have made all the requisite provisions for carrying them 
into effect. 

There is also reason to believe that this construction agrees 
with the opinions entertained by the State Conventions, when 
they were deliberating on the Constitution, especially by those 
who objected to it, because there was not required in Commer- 



204 THE FEDERAL GOVERNMENT 

cial Treaties the consent of two-thirds of the whole number of 
the members of the Senate, instead of two-thirds of the Sen- 
ators present, and because, in Treaties respecting territorial 
and certain other rights and claims, the concurrence of three- 
fourths of the whole number of the members of both Houses 
respectively was not made necessary. 

It is a fact, declared by the General Convention, and uni- 
versally understood, that the Constitution of the United States 
was the result of a spirit of amity and mutual concession. And 
it is well known that, under this influence, the smaller States 
were admitted to an equal representation in the Senate, with 
the larger States ; and that this branch of the Government was 
invested with great powers; for, on the equal participation of 
those powers, the sovereignty and political safety of the smaller 
States were deemed essentially to depend. 

If other proofs than these, and the plain letter of the Consti- 
tution itself, be necessary to ascertain the point under consider- 
ation, they may be found in the Journals of the General Con- 
vention, which I have deposited in the office of the Depart- 
ment of State. In those Journals it will appear, that a proposi- 
tion was made, "that no Treaty should be binding on the 
United States which was not ratified by a law," and that the 
proposition was explicitly rejected. 

As, therefore, it is perfectly clear to my understanding, that 
the assent of the House of Representatives is not necessary to 
the validity of a Treaty; as the Treaty with Great Britain 
exhibits in itself all the objects requiring Legislative provision, 
and on these the papers called for can throw no Hght; and as it 
is essential to the due administration of the Government, that 
the boundaries fixed by the Constitution between the different 
departments should be preserved — a just regard to the Con- 
stitution and to the duty of my office, under all the circum- 
stances of this case, forbid a compliance with your request. 

G. Washington. 

April 6. — The House accordingly resolved itself into a Com- 
mittee of the Whole on said Message. 



THE HOUSE IN TREATY-MAKING 205 

Mr. Blount brought forward the following resolutions: 

^'Resolved, That, it being declared by the second section of 
the second article of the Constitution, ' that the President shall 
have power, by and with the advice of the Senate, to make 
Treaties, provided two-thirds of the Senate present concur,' 
the House of Representatives do not claim any agency in 
making Treaties; but, that when a Treaty stipulates regula- 
tions on any of the subjects submitted by the Constitution to 
the power of Congress, it must depend for its execution, as to 
such stipulations, on a law or laws to be passed by Congress. 
And it is the constitutional right and duty of the House of 
Representatives, in all such cases, to deliberate on the expedi- 
ency or inexpediency of carr3dng such Treaty into effect, and 
to determine and act thereon, as, in their judgment, may be 
most conducive to the public good. 

^'Resolved, That it is not necessary to the propriety of any 
application from this House to the Executive, for information 
desired by them, and which may relate to any constitutional 
functions of the House, that the purpose for which such in- 
formation may be wanted, or to which the same may be applied, 
should be stated in the application." 

[The Blount Resolutions were carried by a vote of 57 to 35. 
But the House afterward voted to carry the treaty into effect 
by a vote of 51 to 48.] 



CHAPTER XXIII 

THE ORGANIZATION AND PROCEDURE OF THE HOUSE OF 
REPRESENTATIVES 

The general structure of Congress is outlined in the Constitution; but 
aside from certain requirements as to the election of presiding officers, 
quorum, keeping of a journal and adjournment, the Constitution does 
not prescribe the internal organization of the Houses of Congress. "Each 
House may determine the Rules of its own Proceedings." A body of rules 
first appears in the Journal of the House in 1789. In 1797 Thomas Jef- 
ferson prepared a manual of parliamentary practice for his own guidance 
as President of the Senate. Both sets of rules were based upon familiar 
practices in the legislatures of the several States or upon the regulations of 
the English Parliament, which, as Jefferson said, were "a prototype to 
most of them." The rules adopted in 1802 have been selected to show the 
procedure of the House at a time when standing committees were begin- 
ning to take the place of select committees. The joint rules continued in 
force without essential change until their abrogation in 1876. 

62. The Opening of a Session} 

This being the day appointed by the Constitution for the 
annual meeting of Congress, the following members of the 
House of Representatives appeared, produced their credentials, 
and took their seats in the House, to wit : . . . 

A quorum, consisting of a majority being present, the House 
proceeded, by ballot, to the choice of a Speaker; and, upon 
examining the ballots, a majority of the votes of the whole 
House was found in favor of Nathaniel Macon, one of the 
Representatives for the State of North Carolina : Whereupon, 
Mr. Macon was conducted to the Chair, and he made his 
acknowledgments to the House, as follows: 

"Gentlemen: Accept my sincere thanks for the honor you 
have conferred on me, in the choice just made. The duties of 
the Chair will be undertaken with great diffidence indeed; but 
it shall be my constant endeavor to discharge them with 
fidelity and impartiality." 

^ Annals oj Congress, 7 Cong., i Sess. (1801), 309-11. 



THE HOUSE OF REPRESENTATIVES 207 

The House proceeded, in the same manner, to the appoint- 
ment of a Clerk; and, upon examining the ballots, a majority 
of the Whole House was found in favor of John Beckley. 

The oath to support the Constitution of the United States, 
as prescribed by law, was then administered by Mr. Griswold, 
one of the Representatives for the State of Connecticut, to the 
Speaker; and then the same oath, or affirmation, was admin- 
istered, by Mr. Speaker, to each of the members present. 

A message from the Senate informed the House that a 
quorum of the Senate is assembled, and ready to proceed to 
business; and that, in the absence of the Vice President, they 
have elected the honorable Abraham Baldwin, President of 
the Senate, pro tempore. 

Ordered, That a message be sent to the Senate to inform 
them that a quorum of this House is assembled, and have 
elected Nathaniel Macon, one of the Representatives of the 
State of North Carolina, their Speaker, and are now ready to 
proceed to business; and that the Clerk of this House do go 
with the said message. 

The House proceeded, by ballot, to the choice of a Sergeant- 
at-Arms, Doorkeeper, and Assistant Doorkeeper; and, upon 
examining the ballots, a majority of the votes of the whole 
House was found in favor of Joseph Wheaton, as Sergeant-at- 
Arms, and, also, an unanimous vote in favor of Thomas Clax- 
ton and Thomas Dunn, severally, the former as Doorkeeper, 
and the latter as Assistant Doorkeeper. 

A message from the Senate informed the House that the 
Senate have appointed a committee on their part, jointly, with 
such committee as may be appointed on the part of this House, 
to wait on the President of the United States, and inform him 
that a quorum of the two Houses is assembled, and ready to re- 
ceive any communications he may think proper to make to them. 

The House proceeded to consider the said message of the 
Senate, and concurred therein. 

Ordered, That Mr. Samuel Smith, Mr. Griswold, and Mr. 
Davis, be appointed a committee on the part of this House, 
for the purpose expressed in the message of the Senate. 



2o8 THE FEDERAL GOVERNMENT 

On motion, it was 

Resolved^ That the rules and orders of proceeding established 
by the late House of Representatives, shall be deemed and 
taken to be the rules and orders of proceeding to be observed 
in this House, until a revision or alteration of the same shall 
take place. 

Ordered, That a committee be appointed to prepare and 
report standing rules and orders of proceeding to be observed 
in this House; and that Mr. Varnum, Mr. Giles, Mr. Leib, Mr. 
Davenport, and Mr. Henderson, be the said committee. 

Ordered, That the Clerk of this House cause the members to 
be furnished, during the present session, with three newspapers 
to each member, such as the members, respectively, shall 
choose, to be delivered at their lodgings. 

Mr. Samuel Smith, from the joint committee appointed to 
wait on the President of the United States, and notify him that 
a quorum of the two Houses is assembled and ready to receive 
any communication he may think proper to make to them, 
reported that the committee had performed that service, and 
that the President signified to them that he would make a 
communication to this House, to-morrow, by message. 

63. Rules and Orders of the House of Representatives.^ 
First. — Touching the duty of the Speaker. 

He shall take the Chair every day at the hour to which the 
House shall have adjourned on the preceding day; shall imme- 
diately call the members to order; and, on the appearance of a 
quorum, shall cause the Journal of the preceding day to be 
read. 

He shall preserve decorum and order; may speak to points 
of order, in preference to other members, rising from his seat 
for that purpose, and shall decide questions of order, subject 
to an appeal to the House by any two members. 

He shall rise to put a question, but may state it sitting. 

Questions shall be distinctly put in this form, to wit: "As 

^ Annals of Congress, 7 Cong., i Sess. (1801-2), 409-15. 



THE HOUSE OF REPRESENTATIVES 209 

many as are of opinion that (as the case may be) say Ay ; " and, 
after the affirmative voice is expressed, "As many as are of a 
contrary opinion, say No." If the Speaker doubts, or a divi- 
sion be called for, the House shall divide; those in the affirma- 
tive of the question shall first rise from their seats, and after- 
wards those in the negative. If the Speaker still doubts, or a 
count be required, the Speaker shall name two members, one 
^ from each side, to tell the numbers in the affirmative; which 
being reported, he shall then name two others, one from each 
side, to tell those in the negative; which being also reported, 
he shall rise, and state the decision to the House. 

All committees shall be appointed by the Speaker, unless 
otherwise specially directed by the House, in which case they 
shall be appointed by ballot; and if, upon such ballot, the 
number required shall not be elected by a majority of the votes 
given, the House shall proceed to a second ballot, in which a 
plurality of votes shall prevail; and in case a greater mmiber 
than are required to compose or complete the committee shall 
have an equal number of votes, the House shall proceed to a 
further ballot or ballots. 

In all cases of ballot by the House, the Speaker shall vote; 
in other cases he shall not vote, unless the House be equally 
divided, or unless his vote, if given to the majority, will make 
the division equal; and, in case of such equal division, the 
question shall be lost. 

All acts, addresses, and joint resolutions, shall be signed by 
the Speaker; and all writs, warrants, or subpoenas, issued by 
order of the House, shall be under his hand and seal, attested 
by the Clerk. 

In case of any disturbance or disorderly conduct in the gal- 
lery or lobby, the Speaker (or Chairman of the Committee of 
the whole House) shall have power to order the same to be 
cleared. 

Stenographers shall be admitted; and the Speaker shall as- 
sign such places to them on the floor, as shall not interfere 
with the convenience of the House. 



2IO THE FEDERAL GOVERNMENT 

Five standing committees shall be appointed at the com- 
mencement of each session, viz: 

A Committee of Elections, to consist of seven members; 

A Committee of Claims, to consist of seven members ; 

A Committee of Commerce and Manufactures, to consist of 
seven members ; 

A Committee of Ways and Means, to consist of seven mem- 
bers; 

And a Committee of Revisal and Unfinished Business, to 
consist of three members. . . . 

It shall be the duty of the said Committee of Ways and 
Means to take into consideration all such reports of the Treas- 
ury Department, and all such propositions relative to the re- 
venue, as may be referred to them by the House; to inquire 
into the state of the public debt, of the revenue, and of the 
expenditures, and to report, from time to time, their opinion 
hereon; to examine into the state of the several public depart- 
ments, and particularly into the laws making appropriations 
of moneys, and to report whether the moneys have been dis- 
bursed conformably with such laws; and, also, to report, from 
time to time, such provisions and arrangements, as may be 
necessary to add to the economy of the departments, and the 
accountability of their officers. ... 

Thirdly. — Of Bills. 

Every bill shall be introduced by motion for leave, or by an 
order of the House on the report of a committee, and, in either 
case, a committee to prepare the same shall be appointed. In 
cases of a general nature, one day's notice, at least, shall be 
given of the motion to bring in a bill; and every such motion 
may be committed. 

Every bill shall receive three several readings in the House, 
previous to its passage; and all bills shall be despatched in 
order as they were introduced, unless where the House shall 
direct otherwise; but no bill shall be twice read on the same 
day, without special order of the House. 



THE HOUSE OF REPRESENTATIVES 211 

The first reading of the bill shall be for information, and if 
opposition be made to it the question shall be, "Shall the bill 
be rejected?" If no opposition be made, or if the question to 
reject be negatived, the bill shall go to its second reading with- 
out a question. 

Upon the second reading of the bill, the Speaker shall state 
it as ready for commitment or engrossment; and if committed, 
then a question shall be, whether to a select or standing com- 
mittee, or to a Committee of the whole House; if to a committee 
of the whole House, the House shall determine on what day. 
But if the bill be ordered to be engrossed, the House shall 
appoint the day when it shall be read the third time. 

After commitment and report thereof to the House, a bill 
may be recommitted, or at any time before its passage. 

All bills ordered to be engrossed, shall be executed in a fair 
round hand. 

When a bill shall pass, it shall be certified by the Clerk, not- 
ing the day of its passing at the foot thereof. . . . 

Joint rules and Orders of the Two Houses. 

In every case of an amendment of a bill agreed to in one 
Hous-e, and dissented to in the other, if either House shall 
request a conference, and appoint a committee for that purpose, 
and the other House shall also appoint a committee to confer, 
such committees shall, at a convenient hour, to be agreed on 
by their Chairman, meet in the conference chamber, and state 
to each other verbally or in writing, as either shall choose, the 
reason of their respective Houses for and against the amend- 
ment, and confer freely thereon. 

When a message shall be sent from the Senate to the House 
of Representatives, it shall be announced at the door of the 
House, by the Doorkeeper, and shall be respectfully communi- 
cated to the Chair, by the person by whom it may be sent. 

The same ceremony shall be observed, when a message shall 
be sent from the House of Representatives to the Senate. 

Messages shall be sent by such persons, as a sense of pro- 
priety, in each House, may determine to be proper. 



212 THE FEDERAL GOVERNMENT 

While bills are on their passage between the two Houses, 
they shall be on paper, and under the signature of the Sec- 
retary or Clerk of each House respectively. 

After a bill shall have passed both Houses, it shall be duly 
enrolled on parchment, by the Clerk of the House of Repre- 
sentatives, or the Secretary of the Senate, as the bill may have 
originated in the one or the other House, before it shall be pre- 
sented to the President of the United States. 

When bills are enrolled, they shall be examined by a joint 
committee of one from the Senate, and two from the House of 
Representatives, appointed as a standing committee for that 
purpose, who shall carefully compare the enrolment with the 
engrossed bills, as passed in the two Houses, and, correcting 
any errors that may be discovered in the enrolled bills, make 
their report, forthwith, to the respective Houses. 

After examination and report, each bill shall be signed in the 
respective Houses, first by the Speaker of the House of Repre- 
sentatives, and then by the President of the Senate. 

After a bill shall have thus been signed in each House, it 
shall be presented by the said committee to the President of 
the United States, for his approbation, it being first endorsed 
on the back of the roll, certifying in which House the same 
originated; which endorsement shall be signed by the Secre- 
tary or Clerk (as the case may be) of the House in which the 
same did originate, and shall be entered on the journal of each 
House. The said committee shall report the day of presenta- 
tion to the President, which time shall also be carefully entered 
on the Journal of each House. 

All orders, resolutions, and votes, which are to be presented 
to the President of the United States, for his approbation, shall 
also, in the same manner, be previously enrolled, examined, 
and signed, and shall be presented in the same manner, and by 
the same committee, as provided in case of bills. 

When the Senate and House of Representatives shall judge 
it proper to make a joint address to the President, it shall be 
presented to him in his audience chamber, by the President of 
the Senate, in the presence of the Speaker and both Houses. 



THE HOUSE OF REPRESENTATIVES 213 

64. The Beginnings of the Committee System} 

The heads of departments are head clerks. Instead of being 
the ministry, the organs of the executive power, and imparting 
a kind of momentum to the operation of the laws, they are 
precluded of late even frpm communicating with the House, 
by reports. In other countries, they may speak as well as act. 
We allow them to do neither. We forbid even the use of a 
speaking-trumpet; or, more properly, as the Constitution has 
ordained that they shall be dumb, we forbid them to explain 
themselves by signs. Two evils, obvious to you, result from all 
this. The efi&ciency of the government is reduced to its mini- 
mum — the proneness of a popular body to usurpation is 
already advancing to its maximum; committees already are 
the ministers; and while the House indulges a jealousy of 
encroachment on its functions, which are properly deliberative, 
it does not perceive that these are impaired and nullified by the 
monopoly as well as the perversion of information, by these 
very committees. . . . 

The committee of ways and means has not, I am told, writ- 
ten a page these two years. It collects the scraps and fritters of 
facts at the Treasury, draws crude hasty results tinctured with 
localities. These are not supported by any formed plan of 
co-operation with the members, and the report calls forth the 
pride of all the motion-makers. Every subject is suggested in 
debate, every popular ground of apprehension is invaded. 
There is nothing to enlighten the House or to guide the public 
opinion. . . . 

^ Fisher Ames to Hamilton, January 26, 1797. Works of Alexander 
Hamilton (Hamilton ed.), vi, 201-02. 



CHAPTER XXIV 

THE ORIGIN OF THE TWELFTH AMENDMENT 

When the electoral vote for President was counted in February, 1801, 
it was found that an equal number of votes had been cast for the Repub- 
lican candidates, Jefferson and Burr. Each had been supported by a major- 
ity of the whole number of electors, but it was impossible to designate "the 
person having the highest number of votes." The election then devolved 
upon the House of Representatives, which was preponderantly Federalist. 
In their hatred for Jefferson, certain of the Federalists intrigued to defeat 
the obvious will of their opponents by bringing Burr into the presidency. 
When the balloting began, Jefferson received the votes of eight States and 
Burr of six: the votes of two States were equally divided and so not 
counted. As the Constitution required a majority of all the States to 
elect, there was no choice. The result was the same on thirty-five succes- 
sive ballots. On the thirty-sixth ballot, February 17, Jefferson received 
the votes of ten States and Burr of four States. The votes of Delaware 
and South Carohna were blank, because the Federahsts abstained from 
voting. How this result was brought about is described by Bayard of 
Delaware in his letter to Hamilton. It was this Jefferson-Burr contest 
which gave impetus to the movement to amend the Constitution so as to 
prevent a recurrence of such a crisis. The effect of the Twelfth Amend- 
ment upon the relative influence of large and small States in choosing a 
President, and upon the office of Vice-President, was accurately forecast 
in the debates from which the following extracts are taken. 

65. The Election of 180 1. 
(a) Bayard to Hamilton.^ 

Washington, January 7th, 1801. 

... I assure you, sir, there appears to be a strong inclina- 
tion in a majority of the federal party to support Mr. Burr. 
The current has already acquired considerable force, and mani- 
festly increasing. The vote which the representation of a State 
enables me to give would decide the question in favor of Mr. 
Jefferson. At present I am by no means decided as to the 
object of preference. If the federal party should take up Mr. 
Burr, I ought certainly to be impressed with the most undoubt- 
^ Works of Alexander Hamilton (Hamilton ed.), vi, 506-07. 



ORIGIN OF TWELFTH AMENDMENT 215 

ing conviction before I separated myself from them. With 
respect to the personal qualities of the competitors, I should 
fear as much from the sincerity of Mr. Jefferson (if he is sincere), 
as from the want of probity in Mr, Burr. There would be really 
cause to fear that the government would not survive the course 
of moral and political experiments to which it would be sub- 
jected in the hands of Mr. Jefiferson. But there is another view 
of the subject which gives me some inclination in favor of Burr. 
I consider the State ambition of Virginia as the source of pre- 
sent party. The faction who govern that State, aim to govern 
the United States. Virginia will never be satisfied but when 
this state of things exists. If Burr should be the President, they 
will not govern, and his acceptance of the office, which would 
disappoint their views, which depend upon Jefferson, would, I 
apprehend, immediately create a schism in the party which 
would soon rise into open opposition. 

I cannot deny, however, that there are strong considerations, 
which give a preference to Mr. Jefferson. The subject admits 
of many doubtful views, and before I resolve on the part I shall 
take, I shall wait the approach of the crisis which may prob- 
ably bring with it circumstances decisive of the event. The 
federal party meet on Friday, for the purpose of forming a 
resolution as to their line of conduct. I have not the least doubt 
of their agreeing to support Burr. . . . 

(b) Bayard to Hamilton} 

Washington, 8th March, 1801. 

... In the origin of the business I had contrived to lay hold 
of all the doubtful votes in the House, which enabled me, 
according to views which presented themselves, to protract or 
terminate the controversy. 

This arrangement was easily made, from the opinion readily 
adopted from the consideration, that representing a small 
State without resources which could supply the means of self- 
protection, I should not dare to proceed to any length which 
would jeopardize the constitution or the safety of any State. 
^ Works of Alexander Hamilton (Hamilton ed.), vi, 522-24. 



2i6 THE FEDERAL GOVERNMENT 

When the experiment was fully made, and acknowledged upon 
all hands to have completely ascertained that Burr was re- 
solved not to commit himself, and that nothing remained but 
to appoint a President by law, or leave the government with- 
out one, I came out with the most explicit and determined 
declaration of voting for Jefferson. You cannot well imagine 
the clamor and vehement invective to which I was subjected 
for some days. We had several caucuses. All acknowledged 
that nothing but desperate measures remained, which several 
were disposed to adopt, and but few were willing openly to 
disapprove. We broke up each time in confusion and discord, 
and the manner of the last ballot was arranged but a few 
minutes before the ballot was given. Our former harmony, 
however, has since been restored. 

The public declarations of my intention to vote for Jefferson, 
to which I have alluded, were made without a general consulta- 
tion, knowing that it would be an easier task to close the 
breach which I foresaw, when it was the result of an act done 
without concurrence, than if it had proceeded from one against 
a decision of the party. Had it not been for a single gentleman 
from Connecticut, the eastern States would finally have voted 
in blank, in the same manner as done by South Carolina and 
Delaware; but, because he refused, the rest of the delegation 
refused; and because Connecticut insisted on continuing the 
ballot for Burr, New Hampshire, Massachusetts, and Rhode 
Island, refused to depart from their former vote. 

The means existed of electing Burr, but this required his 
co-operation. By deceiving one man (a great blockhead), and 
tempting two (not incorruptible), he might have secured a 
majority of the States. . . . 

66. Debate in the Senate on the Proposed Amendment} 

Mr. White of Delaware: — The United States are now 
divided, and will probably continue so, into two great political 
parties; whenever, under this amendment, a Presidential elec- 
tion shall come round, and the four rival candidates be pro- 

^ December 2, 1803. Annals of Congress, 8 Cong., i Sess., 141-84 passim. 



ORIGIN OF TWELFTH AMENDMENT 217 

posed, two of them only will be voted for as President — one 
of these two must be the man ; the chances in favor of each will 
be equal. Will not this increased probability of success afford 
more than double the inducement to those candidates, and 
their friends, to tamper with the Electors, to exercise intrigue, 
bribery, and corruption, as in an election upon the present 
plan, where the whole four would be voted for alike, where the 
chances against each are as three to one, and it is totally uncer- 
tain which of the gentlemen may succeed to the high office? 
And there must, indeed, be a great scarcity of character in the 
United States, when, in so extensive and populous a country, 
four citizens cannot be found, either of them worthy even of the 
Chief Magistracy of the nation. But, Mr. President, I have 
never yet seen the great inconvenience that has been so much 
clamored about, and that will be provided against in future by 
substituting this amendment. There was, indeed, a time when 
it became necessary for the House of Representatives to elect, 
by ballot, a President of the United States from the two 
highest in vote, and they were engaged here some days, as I 
have been told, in a very good-humored way, in the exercise 
of that constitutional right. ... I will not undertake to say 
that there was no danger apprehended on that occasion. I 
know many of the friends of the Constitution had their fears ; 
the experiment however proved them groundless ; but what was 
the danger apprehended pending the election in the House of 
Representatives? Was it that they might choose Colonel Burr 
or Mr. Jefferson President? Not at all; they had, notwithstand- 
ing what had been said on this subject by the gentleman from 
Maryland, (Mr. Wright) a clear constitutional right to choose 
either of them, as much so as the Electors in the several States 
had to vote for them in the first instance ; the particular man 
was a consideration of but secondary importance to the coun- 
try; the only ground of alarm was, lest the House should 
separate without making any choice, and the Government be 
without a head, the consequences of which no man could well 
calculate. The present attempt ... is taking advantage of a 
casualty to alter the Constitution that astonished everyone 



2i8 THE FEDERAL GOVERNMENT 

when it happened, and that no man can imagine, in the ordin- 
ary course of events, will ever arise again. . . . 

It has of late, Mr. President, become fashionable to attach 
very little importance to the office of Vice President, to con- 
sider it a matter but of small consequence who the man may 
be; to view his post merely as an idle post of honor, and the 
incumbent as a cipher in the Government; or according to the 
idea expressed by an honorable member from Georgia, (Mr. 
Jackson,) quoting, I beheve, the language of some Eastern 
politician, as a fifth wheel to a coach ; but in my humble opinion 
this doctrine is both incorrect and dangerous. The Vice Presi- 
dent is not only the second ofi&cer of Government in point of 
rank, but of importance, and should be a man possessing and 
worthy of the confidence of the nation. I grant, sir, should this 
designating mode of election succeed, it will go very far to 
destroy, not the certain or contingent duties of the office, for 
the latter by this resolution are considerably extended, but 
what may be much more dangerous, the personal consequence 
and worth of the officer ; by rendering the Electors more indif- 
ferent about the reputation and qualification of the candidate, 
seeing they vote for him but as a secondary character; and 
which may occasion this high and important trust to be de- 
posited in very unsafe hands. . . . The convention in con- 
structing this part of the Constitution, in settfing the first and 
second offices of the Government, and pointing out the mode 
of filling, aware of the probability of the Vice President suc- 
ceeding to the office of President, endeavored to attach as much 
importance and respectability to his office as possible, by mak- 
ing it uncertain at the time of voting, which of the persons voted 
for should be President, and which Vice President; so as to 
secure the election of the best men in the country, or at least 
those in whom the people reposed the highest confidence, to the 
two offices — thus filling the office of Vice President with one 
of our most distinguished citizens, who would give respect- 
abihty to the Government, and in case of the Presidency be- 
coming vacant, having at his post a man constitutionally en- 
titled to succeed, who had been honored with the second largest 



ORIGIN OF TWELFTH AMENDMENT 219 

number of the suffrages of the people for the same office, and 
who of consequence would be probably worthy of the place, 
and competent to its duties. Let us now, Mr. President, exam- 
ine for a moment the certain effect of the change about to be 
made, or what must be the operation of this designating prin- 
ciple, if you introduce it into the Constitution. Now the 
Elector cannot designate, but must vote for two persons as 
President, leaving it to circumstances not within his power to 
control which shall be the man : of course he will select two char- 
acters, each suitable for that office, and the second highest in 
vote must be the Vice President; but upon this designating 
plan the public attention will be entirely engrossed in the 
election of the President, in making one great man. The eyes 
of each contending party will be fixed exclusively upon their 
candidate for this first and highest office; . . . the Vice- 
Presidency will either be left to chance, or what will be much 
worse, prostituted to the basest purposes; character, talents, 
virtue, and merit, will not be sought after in the candidate. 
The question will not be asked, is he capable? is he honest? 
But can he by his name, by his connections, by his wealth, by 
his local situation, by his influence or his intrigues, best pro- 
mote the election of a President? He will be made a mere 
stepping-stone of ambition. Thus, by the death or other con- 
stitutional inability of the President to do the duties of the 
office, you may find at the head of your Government, as First 
Magistrate of the nation, a man who has either smuggled or 
bought himself into office; who, not having the confidence of the 
people, or feeling the constitutional responsibility of his place, 
but attributing his elevation merely to accident, and conscious 
of the superior claims of others, will be without restraint upon 
his conduct, without that strong inducement to consult the 
wishes of the people, and to pursue the true interests of the 
nation, that the hope of popular applause, and the prospect of 
re-election, would offer. . . . 

Mr. Tracy of Conn. — Nothing can be more obvious, than 
the intention of the plan adopted by our Constitution for 
choosing a President. The Electors are to nominate two per- 



220 THE FEDERAL GOVERNMENT 

sons, of whom they cannot know which will be President; this 
circumstance not only induces them to select both from the 
best men; but gives a direct advantage into the hands of the 
small States even in the electoral choice. For they can always 
select from the two candidates set up by the Electors of large 
States, by throwing their votes upon their favorite, and of 
course giving him a majority; or, if the Electors of the large 
States should, to prevent this effect, scatter their votes for one 
candidate, then the Electors of the small States would have it in 
their power to elect a Vice President. So that, in any event, the 
small States will have a considerable agency in the election. But 
if the discriminating or designating principle is carried, as con- 
tained in this resolution, the whole, or nearly the whole right and 
agency of the small States, in the electoral choice of Chief Magis- 
trate, is destroyed, and their chance of obtaining a federative 
choice by States, if not destroyed, is very much diminished. . . . 

The whole power of election is now vested in the two 
parties; numbers and States, or, great and small States; and 
it is demonstration itself, if you increase the power of the one, 
in just such proportion you diminish that of the other. Do the 
gentlemen suppose that the public will, when constitutionally 
expressed by a majority of States, in pursuance of the federa- 
tive principle of our Government, is of less validity, or less 
binding upon the community at large, than the public will 
expressed by a popular majority? The framersof your Constitu- 
tion, the people who adopted it, meant, that the public will, 
in the choice of a President, should be expressed by Electors, 
if they could agree, and if not, the public will should be ex- 
pressed by a majority of the States, acting in their federative 
capacity, and that in both cases the expression of the public 
will should be equally binding. 

It is pretended that the public will can never properly or 
constitutionally be expressed by a majority of numbers of the 
people, or of the House of Representatives. This may be a 
pleasing doctrine enough to great States; but it is certainly 
incorrect. Our Constitution has given the expression of the 
public will, in a variety of instances, other than that of the 



ORIGIN OF TWELFTH AMENDMENT 221 

choice of President, into very different hands from either House 
of Representatives or the people at large. The President and 
Senate, and in many cases the President alone, can express the 
public will, in appointments of high trust and responsibility, 
and it cannot be forgotten that the President sometimes 
expresses the public will by removals. Treaties, highly import- 
ant expressions of the public will, are made by the President 
and Senate; and they are the supreme law of the land. In the 
several States, many great offices are filled, and even the Chief 
Magistracy, by various modes of election. The public will is 
sometimes expressed by pluralities instead of majorities, some- 
times by both branches of the Legislatures, and sometimes by 
one, and in certain contingencies, elections are settled by lot. 
The people have adopted constitutions containing such regu- 
lations, and experience has proved that they are well calculated 
to preserve their liberties and promote their happiness. From 
what good or even pardonable motive, then, can it be urged 
that the present mode of electing our President has a tendency 
to counteract the public will? Do gentlemen intend to destroy 
every federal feature in this Constitution? And is this resolu- 
tion a precursor to a complete consolidation of the Union, and 
to the establishment of a simple republic? — Or will it suffice 
to break down every federative feature which secures to one 
portion of the Union, to the small States, their rights? . . . 

Mr. Taylor of Virginia. — This idea of federalism ought to 
be well discussed by the smaller States, before they will suffer 
it to produce the intended effect — that of exciting their jeal- 
ousy against the larger. To him it appeared to be evidently 
incorrect. Two principles sustain our Constitution : one a major- 
ity of the people, the other a majority of the States; the first 
was necessary to preserve the liberty or sovereignty of the 
people; the last, to preserve the liberty or sovereignty of the 
States. But both are founded in the principle of majority; and 
the effort of the Constitution is to preserve this principle in 
relation both to the people and the States, so that neither 
species of sovereignty or independence should be able to de- 
stroy the other. . . . 



222 THE FEDERAL GOVERNMENT 

For this great purpose certain political functions are assigned 
to be performed, under the auspices of the State or federal 
principle, and certain others under the popular principle. It 
was the intention of the Constitution that these functions 
should be performed in conformity to its principle. If that 
principle is in fact a government of a minority, then these func- 
tions ought to be performed by a minority. When the federal 
principle is performing a function, according to this idea, a 
majority of the States ought to decide. And, by the same mode 
of reasoning, when the popular principle is performing a func- 
tion, then a minority of the people ought to decide. This 
brings us precisely to the question of the amendment. It is the 
intention of the Constitution that the popular principle shall 
operate in the election of a President and Vice President. It 
is also the intention of the Constitution that the popular 
principle, in discharging the functions committed to it by the 
Constitution, should operate by a majority and not by a minor- 
ity. That the majority of the people should be driven, by an 
unforeseen state of parties, to the necessity of relinquishing 
their will in the election of one or the other of these officers, or 
that the principle of majority, in a function confided to the 
popular will, should be deprived of half its rights, and be laid 
under a necessity of violating its duty to preserve the other 
half, is not the intention of the Constitution. . . . 

Sir, it could never have been the intention of the Constitu- 
tion to produce a state of things by which a majority of the 
popular principle should be under the necessity of voting 
against its judgment to secure a President, and by which a 
minor faction should acquire a power capable of defeating the 
majority in the election of President, or of electing a Vice 
President contrary to the will of the electing principle. To 
permit this abuse would be a fraudulent mode of defeating 
the operation of the popular principle in this election, in order 
to transfer it to the federal principle — to disinherit the people 
for the sake of endowing the House of Representatives ; whereas 
it was an accidental and not an artificial disappointment in the 
election of a President, against which the Constitution intended 



ORIGIN OF TWELFTH AMENDMENT 223 

to provide. A fair and not an unfair attempt to elect was pre- 
viously to be made by the popular principle, before the elec- 
tion was to go into the House of Representatives. And if the 
people of all the States, both large and small, should, by an 
abuse of the real design of the Constitution, be bubbled out of 
the election of executive power, by leaving to them the nominal 
right of an abortive effort, and transferring to the House of 
Representatives the substantial right of a real election, nothing 
will remain but to corrupt the election in that House by some 
of those abuses of which elections by diets are susceptible, to 
bestow upon executive power an aspect both formidable and 
inconsistent with the principles by which the Constitution 
intended to mould it. 

The great check imposed upon executive power was a popu- 
lar mode of election; and the true object of jealousy, which 
ought to attract the attention of the people of every State, is 
any circumstance tending to diminish or destroy that check. 
It was also a primary intention of the Constitution to keep 
executive power independent of legislative; and although a 
provision was made for its election by the House of Representa- 
tives in a possible case, that possible case never was intended 
to be converted into the active rule, so as to destroy in a degree 
the line of separation and independency between the executive 
and legislative power. The controversy is not therefore be- 
tween larger and smaller States, but between the people of 
every State and the House of Representatives. Is it better that 
the people — a fair majority of the popular principle — should 
elect executive power; or, that a minor faction should be 
enabled to embarrass and defeat the judgment and will of this 
majority, and throw the election into the House of Representa- 
tives? This is the question. . . . 

67. The Twelfth Amendment} 

The Electors shall meet in their respective states, and vote 
by ballot for President and Vice-President, one of whom, at 

^ Revised Statutes of the United States (1878), 30. This amendment 
went into effect September 25, 1804. 



224 THE FEDERAL GOVERNMENT 

least, shall not be an inhabitant of the same state with them- 
selves ; they shall name in their ballots the person voted for as 
President, and in distinct ballots the person voted for as Vice- 
President, and they shall make distinct lists of all persons 
voted for as President, and of all persons voted for as Vice- 
President, and of the number of votes for each, which lists they 
shall sign and certify, and transmit sealed to the seat of the 
government of the United States, directed to the President of 
the Senate ; — The President of the Senate shall, in presence 
of the Senate and House of Representatives, open all the certi- 
ficates and the votes shall then be counted ; — The person 
having the greatest number of votes for President, shall be the 
President, if such number be a majority of the whole number 
of Electors appointed; and if no person have such majority, 
then from the persons having the highest numbers not exceed- 
ing three on the list of those voted for as President, the House 
of Representatives shall choose immediately, by ballot, the 
President. But in choosing the President, the votes shall be 
taken by states, the representation from each state having one 
vote; a quorum for this purpose shall consist of a member or 
members from two-thirds of the states, and a majority of all 
the states shall be necessary to a choice. And if the House of 
Representatives shall not choose a President whenever the 
right of choice shall devolve upon them, before the fourth day 
of March next following, then the Vice-President shall act as 
President, as in the case of the death or other constitutional 
disability of the President. The person having the greatest 
number of votes as Vice-President, shall be the Vice-President, 
if such number be a majority of the whole number of Electors 
appointed, and if no person have a majority, then from the 
two highest numbers on the list, the Senate shall choose the 
Vice-President; a quorum for the purpose shall consist of two- 
thirds of the whole number of Senators, and a majority of the 
whole number shall be necessary to a choice. But no person 
constitutionally ineligible to the office of President shall be 
eligible to that of Vice-President of the United States. 



PART FOUR. THE DEVELOPMENT OF 
NATIONAL SOVEREIGNTY 

CHAPTER XXV 

THE FEDERAL COMPACT AND THE DOCTRINE OF STRICT 
CONSTRUCTION 

The fear of "consolidation," ever present in the minds of democrats 
like Jefferson in the early years of the RepubUc, led to reiterated emphasis 
upon the contractual nature of the Constitution, the principle of State 
sovereignty, and the doctrine of strict construction. This doctrine is 
elaborated by Jefferson in his opinion on the constitutionality of the 
proposed national bank. The most forcible expression of Jeffersonian 
principles is contained in the Kentucky Resolutions of 1798, which were 
drafted by Jefferson and adopted by the legislature of that State, then 
controlled by his partisans. The Kentucky Resolutions of the following 
year suggest " the rightful remedy " for usurpation of power by the Federal 
Government ; but Jefferson was not disposed to elaborate this ultimate 
remedy. He was content "to leave the matter in such a train as that we 
may not be committed absolutely to push the matter to extremities, & 
yet may be free to push as far as events will render prudent." 

68. Jefferson on the Constitutionality of a National Bank} 

... I consider the foundation of the Constitution as laid on 
this ground: That "all powers not delegated to the United 
States, by the Constitution, nor prohibited by it to the States, 
are reserved to the States or to the people."^ To take a single 
step beyond the boundaries thus specially drawn around the 
powers of Congress, is to take possession of a boundless field 
of power, no longer susceptible of any definition. 

The incorporation of a bank, and the powers assumed by 
this bill, have not, in my opinion, been delegated to the United 
States, by the Constitution. 

I. They are not among the powers specially enumerated: for 

1 Writings of Thomas Jefferson (Ford ed.), v, 285-87. 

2 The twelfth of the amendments then before the States for ratifica- 
tion; the tenth of those adopted. 



226 NATIONAL SOVEREIGNTY 

these are: ist. A power to lay taxes for the purpose of paying 
the debts of the United States; but no debt is paid by this bill, 
nor any tax laid. Were it a bill to raise money, its origination in 
the Senate would condemn it by the Constitution. 

2d. "To borrow money." But this bill neither borrows 
money nor ensures the borrowing it. The proprietors of the 
bank will be just as free as any other money holders, to lend or 
not to lend their money to the public. The operation proposed 
in the bill, first, to lend them two millions, and then to borrow 
them back again, cannot change the nature of the latter act, 
which will still be a pajnnent, and not a loan, call it by what 
name you please. 

3. To "regulate commerce with foreign nations, and among 
the States, and with the Indian tribes." To erect a bank, and 
to regulate commerce, are very different acts. He who erects a 
bank, creates a subject of commerce in its bills ; so does he who 
makes a bushel of wheat, or digs a dollar out of the mines; yet 
neither of these persons regulates commerce thereby. To make 
a thing which may be bought and sold, is not to prescribe regu- 
lations for buying and selling. Besides, if this was an exercise 
of the power of regulating commerce, it would be void, as 
extending as much to the internal commerce of every State, 
as to its external. For the power given to Congress by the 
Constitution does not extend to the internal regulation of the 
commerce of a State, (that is to say of the commerce between 
citizen and citizen,) which remain exclusively with its own 
legislature; but to its external commerce only, that is to say, 
its commerce with another State, or with foreign nations, or 
with the Indian tribes. Accordingly the bill does not propose 
the measure as a regulation of trade, but as "productive of 
considerable advantages to trade." Still less are these powers 
covered by any other of the special enumerations. 

II. Nor are they within either of the general phrases, which 
are the two following : — 

I. To lay taxes to provide for the general welfare of the 
United States, that is to say, "to lay taxes for the purpose of 
providing for the general welfare." For the la>'ing of taxes is 



THE FEDERAL COMPACT 227 

the power, and the general welfare the purpose for which the 
power is to be exercised. They are not to lay taxes ad libitum 
for any purpose they please; but only to pay the debts or provide 
for the welfare of the Union. In like manner, they are not to do 
anything they please to provide for the general welfare, but only 
to lay taxes for that purpose. To consider the latter phrase, 
not as describing the purpose of the first, but as giving a distinct 
and independent power to do any act they please, which might 
be for the good of the Union, would render all the preceding 
and subsequent enumerations of power completely useless. 

It would reduce the whole instrument to a single phrase, that 
of instituting a Congress with power to do whatever would be 
for the good of the United States ; and, as they would be the 
sole judges of the good or evil, it would be also a power to do 
whatever evil they please. 

It is an established rule of construction where a phrase will 
bear either of two meanings, to give it that which will allow 
some meaning to the other parts of the instrument, and not that 
which would render all the others useless. Certainly no such 
universal power was meant to be given them. It was intended 
to lace them up straitly within the enumerated powers, and 
those without which, as means, these powers could not be 
carried into effect. It is known that the very power now pro- 
posed as a means was rejected as an end by the Convention 
which formed the Constitution. A proposition was made to 
them to authorize Congress to open canals, and an amendatory 
one to empower them to incorporate. But the whole was 
rejected, and one of the reasons for rejection urged in debate 
was, that then they would have a power to erect a bank, which 
would render the great cities, where there were prejudices and 
jealousies on the subject, adverse to the reception of the Consti- 
tution. 

2. The second general phrase is, "to make all laws necessary 
and proper for carrying into execution the enumerated powers." 
But they can all be carried into execution without a bank. A 
bank therefore is not necessary, and consequently not author- 
ized by this phrase. 



228 NATIONAL SOVEREIGNTY 

It has been urged that a bank will give great facility or con- 
venience in the collection of taxes. Suppose this were true: yet 
the Constitution allows only the means which are ^^ necessary,''^ 
not those which are merely "convenient" for effecting the 
enumerated powers. If such a latitude of construction be al- 
lowed to this phrase as to give any non-enumerated power, it 
will go to everyone, for there is not one which ingenuity may not 
torture into a convenience in some instance or other, to some one 
of so long a list of enumerated powers. It would swallow up all 
the delegated powers, and reduce the whole to one power, as be- 
fore observed. Therefore it was that the Constitution restrained 
them to the necessary means, that is to say, to those means 
without which the grant of power would be nugatory 

69. Kentucky Resolutions of 1798} 

I. Resolved, that the several States composing the United 
States of America, are not united on the principle of unlimited 
submission to their general government; but that by compact 
under the style and title of a Constitution for the United States 
and of amendments thereto, they constituted a general govern- 
ment for special purposes, delegated to that government cer- 
tain definite powers, reserving each State to itself, the residuary 
mass of right to their own self-government; and that whenso- 
ever the general government assumes undelegated powers, its 
acts are unauthoritative, void, and of no force: That to this 
compact each State acceded as a State, and is an integral party, 
its co-States forming, as to itself, the other party: That the 
government created by this compact was not made the exclu- 
sive or final judge of the extent of the powers delegated to itself; 
since that would have made its discretion, and not the Constitu- 
tion, the measure of its powers ; but that as in all other cases of 
compact among parties having no common Judge, each party 
has an equal right to judge for itself, as well of infractions as of 
the mode and measure of redress. 

II. Resolved, that the Constitution of the United States hav- 
ing delegated to Congress a power to punish treason, counter- 

1 Shaler, Kentucky, in American Commonwealths Series, 409-16. 



THE FEDERAL COMPACT 229 

feiting the securities and current coin of the United States, 
piracies and felonies committed on the high seas, and offenses 
against the laws of nations, and no other crimes whatever, and 
it being true as a general principle, and one of the amendments 
to the Constitution having also declared "that the powers not 
delegated to the United States by the Constitution, nor pro- 
hibited by it to the States, are reserved to the States respect- 
ively, or to the people," therefore also the same act of Congress 
passed on the 14th day of July, 1798, and entitled "An act in 
addition to the act entitled an act for the punishment of certain 
crimes against the United States;" as also the act passed by 
them on the 27th day of June, 1798, entitled "An act to punish 
frauds committed on the Bank of the United States" (and all 
other their acts which assume to create, define, or punish crimes 
other than those enumerated in the Constitution), are alto- 
gether void and of no force, and that the power to create, 
define, and punish such other crimes is reserved, and of right 
appertains solely and exclusively to the respective States, each 
within its own Territory. 

III. Resolved, that it is true as a general principle, and is also 
expressly declared by one of the amendments to the Constitu- 
tion that "the powers not delegated to the United States by 
the Constitution, nor prohibited by it to the States, are reserved 
to the States respectively or to the people; " and that no power 
over the freedom of religion, freedom of speech, or freedom of 
the press being delegated to the United States by the Consti- 
tution, nor prohibited by it to the States, all lawful powers 
respecting the same did of right remain, and were reserved to 
the States, or to the people: That thus was manifested their 
determination to retain to themselves the right of judging how 
far the licentiousness of speech and of the press may be abridged 
without lessening their useful freedom, and how far those 
abuses which cannot be separated from their use should be 
tolerated rather than the use be destroyed ; and thus also they 
guarded against all abridgment by the United States of the 
freedom of religious opinions and exercises, and retained to 
themselves the right of protecting the same, as this State, by a 



230 NATIONAL SOVEREIGNTY 

law passed on the general demand of its citizens, had already 
protected them from all human restraint or interference : And 
that in addition to this general principle and express declara- 
tion, another and more special provision has been made by one 
of the amendments to the Constitution which expressly de- 
clares, that "Congress shall make no law respecting an estab- 
lishment of -religion, or prohibiting the free exercise thereof, 
or abridging the freedom of speech, or of the press," thereby 
guarding in the same sentence, and under the same words, the 
freedom of religion, of speech, and of the press, insomuch, that 
whatever violates either, throws down the sanctuary which 
covers the others, and that libels, falsehoods, defamation 
equally with heresy and false religion, are withheld from the 
cognizance of Federal tribunals. That therefore the act of the 
Congress of the United States passed on the 14th day of July, 
1798, entitled "An act in addition to the act for the punish- 
ment of certain crimes against the United States," which does 
abridge the freedom of the press, is not law, but is altogether 
void and of no effect. 

IV. Resolved, that alien friends are under the jurisdiction 
and protection of the lav/s of the State wherein they are; that 
no power over them has been delegated to the United States, 
nor prohibited to the individual States distinct from their power 
over citizens ; and it being true as a general principle, and one 
of the amendments to the Constitution having also declared 
that "the powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people," the act of the Con- 
gress of the United States passed on the 2 2d day of June, 1798, 
entitled "An act concerning aliens," which assumes power over 
alien friends not delegated by the Constitution, is not law, but 
is altogether void and of no force. 

V. Resolved, that in addition to the general principle as well 
as the express declaration, that powers not delegated are 
reserved, another and more special provision inserted in the 
Constitution from abundant caution has declared, "that the 
migration or importation of such persons as any of the States 



THE FEDERAL COMPACT 231 

now existing shall think proper to admit, shall not be prohibited 
by the Congress prior to the year 1808." That this Common- 
wealth does admit the migration of alien friends described as 
the subject of the said act concerning aliens ; that a provision 
against prohibiting their migration is a provision against all 
acts equivalent thereto, or it would be nugatory; that to re- 
move them when migrated is equivalent to a prohibition of 
their migration, and is therefore contrary to the said provision 
of the Constitution, and void. 

VI. Resolved, that the imprisonment of a person under the 
protection of the laws of this Commonwealth on his failure to 
obey the simple order of the President to depart out of the 
United States, as is undertaken by the said act entitled "An 
act concerning aliens," is contrary to the Constitution, one 
amendment to which has provided, that "no person shall be 
deprived of liberty without due process of law," and that 
another having provided "that in all criminal prosecutions, 
the accused shall enjoy the right to a public trial by an impar- 
tial jury, to be informed of the nature and cause of the accusa- 
tion, to be confronted with the witnesses against him, to have 
compulsory process for obtaining witnesses in his favour, and 
to have the assistance of counsel for his defense," the same act 
undertaking to authorize the President to remove a person 
out of the United States who is under the protection of the law, 
on his own suspicion, without accusation, without jury, without 
public trial, without confrontation of the witnesses against 
him, without having witnesses in his favour, without defense, 
without counsel, is contrary to these provisions also of the 
Constitution, is therefore not law, but utterly void and of no 
force. That transferring the power of judging any person who 
is under the protection of the laws, from the courts to the 
President of the United States, as is undertaken by the same 
act concerning aliens, is against the article of the Constitution 
which provides, that "the judicial power of the United States 
shall be vested in courts, the judges of which shall hold their 
offices during good behavior," and that the said act is void for 
that reason also ; and it is further to be noted, that this transfer 



232 NATIONAL SOVEREIGNTY 

of judiciary power is to that magistrate of the general govern- 
ment who already possesses all the executive, and a qualified 
negative in all the legislative powers. 

VII. Resolved, that the construction applied by the general 
government (as is evinced by sundry of their proceedings) to 
those parts of the Constitution of the United States which 
delegate to Congress a power to lay and collect taxes, duties, 
imposts, and excises; to pay the debts, and provide for the 
common defense, and general welfare of the United States, and 
to make all laws which shall be necessary and proper for carry- 
ing into execution the powers vested by the Constitution in the 
government of the United States, or any department thereof, 
goes to the destruction of all the limits prescribed to their power 
by the Constitution: That words meant by that instrument to 
be subsidiary only to the execution of the limited powers ought 
not to be so construed as themselves to give unhmited powers, 
nor a part so to be taken as to destroy the whole residue of the 
instrument: That the proceedings of the general government 
under color of these articles will be a fit and necessary subject 
for revisal and correction at a time of greater tranquillity, 
while those specified in the preceding resolutions call for imme- 
diate redress. 

VIII. Resolved, that the preceding Resolutions be trans- 
mitted to the Senators and Representatives in Congress from 
this Commonwealth, who are hereby enjoined to present the 
same to their respective Houses, and to use their best endeavors 
to procure, at the next session of Congress, a repeal of the 
aforesaid unconstitutional and obnoxious acts. 

IX. Resolved, lastly, that the Governor of this Common- 
wealth be, and is hereby authorized and requested to com- 
municate the preceding Resolutions to the Legislatures of the 
several States, to assure them that this Commonwealth con- 
siders Union for specified National purposes, and particularly 
for those specified in their late Federal Compact, to be friendly 
to the peace, happiness, and prosperity of all the States : that 
faithful to that compact according to the plain intent and 
meaning in which it was understood and acceded to by the 



THE FEDERAL COMPACT 233 

several parties, it is sincerely anxious for its preservation : that 
it does also believe, that to take from the States all the powers 
of self-government, and transfer them to a general and. con- 
solidated government, without regard to the special delegations 
and reservations solemnly agreed to in that compact, is not for 
the peace, happiness, or prosperity of these States : And that, 
therefore, this Commonwealth is determined, as it doubts not 
its co-States are, tamely to submit to undelegated and conse- 
quently unlimited powers in no man or body of men on earth : 
that if the acts before specified should stand, these conclusions 
would flow from them ; that the general government may place 
any act they think proper on the list of crimes and punish it 
themselves, whether enumerated or not enumerated by the 
Constitution as cognizable by them: that they may transfer 
its cognizance to the President or any other person, who may 
himself be the accuser, counsel, judge, and jury, whose sus- 
picions may be the evidence, his order the sentence, his officer 
the executioner, and his breast the sole record of the transac- 
tion: that a very numerous and valuable description of the 
inhabitants of these States being by this precedent reduced as 
outlaws to the absolute dominion of one man, and the barrier 
of the Constitution thus swept away from us all, no rampart 
now remains against the passions and the powers of a majority 
of Congress, to protect from a like exportation or other more 
grievous punishment the minority of the same body, the legis- 
latures, judges, governors, and counselors of the States, nor 
their other peaceable inhabitants who may venture to reclaim 
the constitutional rights and liberties of the State and people, 
or who for other causes, good or bad, may be obnoxious to the 
views or marked by the suspicions of the President, or be 
thought dangerous to his or their elections or other interests, 
public or personal: that the friendless alien has indeed been 
selected as the safest subject of a first experiment, but the 
citizen will soon follow, or rather has already followed: for, 
already has a sedition act marked him as its prey: that these 
and successive acts of the same character, unless arrested on 
the threshold, may tend to drive these States into revolution 



234 NATIONAL SOVEREIGNTY 

and blood, and will furnish new calumnies against Republican 
governments, and new pretexts for those who wish it to be 
believed, that man cannot be governed but by a rod of iron: 
that it would be a dangerous delusion were a confidence in the 
men of our choice to silence our fears for the safety of our rights: 
that confidence is everywhere the parent of despotism: free 
government is founded in jealousy and not in confidence; it is 
Jealousy and not confidence which prescribes limited Constitu- 
tions to bind down those whom we are obliged to trust with 
power: that our Constitution has accordingly fixed the limits 
to which and no further our confidence may go; and let the 
honest advocate of confidence read the alien and sedition acts, 
and say if the Constitution has not been wise in fixing limits to 
the government it created, and whether we should be wise in 
destroying those limits ; let him say what the government is if 
it be not a tyranny, which the men of our choice have conferred 
on the President, and the President of our choice has assented 
to and accepted over the friendly strangers, to whom the mild 
spirit of our country and its laws had pledged hospitality and 
protection : that the men of our choice have more respected the 
bare suspicions of the President than the solid rights of inno- 
cence, the claims of justification, the sacred force of truth, and 
the forms and substance of law and justice. In questions of 
power then let no more be heard of confidence in man, but bind 
him down from mischief by the claims of the Constitution. 
That this Commonwealth does therefore call on its co-States 
for an expression of their sentiments on the acts concerning 
aliens, and for the punishment of certain crimes herein before 
specified, plainly declaring whether these acts are or are not 
authorized by the Federal Compact. And it doubts not that 
their sense will be so announced as to prove their attachment 
unaltered to limited government, whether general or particular, 
and that the rights and liberties of their co-States will be 
exposed to no dangers by remaining embarked on a common 
bottom with their own : That they will concur with this Com- 
monwealth in considering the said acts so palpably against the 
Constitution as to amount to an undisguised declaration, that 



THE FEDERAL COMPACT 235 

the compact is not meant to be the measure of the powers of 
the general government, but that it will proceed in the exercise 
over these States of all pov/ers whatsoever : That they will view 
this as seizing the rights of the States and consolidating them 
in the hands of the general government with a power assumed 
to bind the States (not merely in cases made Federal) but in 
all cases whatsoever, by laws made, not with their consent, 
but by others against their consent: That this would be to 
surrender the form of government we have chosen, and to live 
under one deriving its powers from its own will, and not from 
our authority; and that the co-States, recurring to their 
natural right in cases not made Federal, will concur in declar- 
ing these acts void and of no force, and will each unite with this 
Commonwealth in requesting their repeal at the next session of 
Congress. 

70. Kentucky Resolutions of 1799.^ 

t 

Resolved, That this Commonwealth considers the Federal 
Union, upon the terms and for the purposes specified in the late 
compact, conducive to the liberty and happiness of the several 
States : That it does now unequivocally declare its attachment 
to the Union, and to that compact, agreeably to its obvious 
and real intention, and will be among the last to seek its dis- 
solution: That if those who administer the General Govern- 
ment be permitted to transgress the limits fixed by that com- 
pact, by a total disregard to the special delegations of power 
therein contained, an annihilation of the State Governments, 
and the creation upon their ruins of a General Consolidated 
Government, will be the inevitable consequence: That the 
principle and construction contended for by sundry of the state 
legislatures, that the General Government is the exclusive 
judge of the extent of the powers delegated to it, stop nothing 
[short] of despotism — since the discretion of those who admin- 
ister the government, and not the Constitution, would be the 
measure of their powers: That the several states who formed 
that instrument being sovereign and independent, have the 
1 Elliot, Debates, iv, ST^~1^- 



236 NATIONAL SOVEREIGNTY 

unquestionable right to judge of the infraction; and, That a 
Nullification by those sovereignties, of all unauthorized acts done 
under color of that instrument is the rightful remedy ; That this 
Commonwealth does, under the most deliberate reconsidera- 
tion, declare, that the said Alien and Sedition Laws are, in their 
opinion, palpable violations of the said Constitution; and, how- 
ever cheerfully it may be disposed to surrender its opinion to a 
majority of its sister states, in matters of ordinary or doubtful 
policy, yet, in no [so] momentous regulations like the present, 
which so vitally wound the best rights of the citizen, it would 
consider a silent acquiescence as highly criminal : That although 
this commonwealth, as a party to the federal compact, will bow 
to the laws of the Union, yet, it does, at the same [time] declare, 
that it will not now, or ever hereafter, cease to oppose in a 
constitutional manner, every attempt at what quarter soever of- 
fered, to violate that compact. And, finally, in order that no pre- 
text or arguments may be drawn from a supposed acquiescence, 
on the part of this Commonwealth in the constitutionality of 
those laws, and be thereby used as precedents for similar future 
violations of the Federal compact — this Commonwealth does 
now enter against them its solemn PROTEST. 



CHAPTER XXVI 

THE POWER TO ACQUIRE TERRITORY AND TO GOVERN 
ACQUIRED TERRITORY 

The purchase of the province of Louisiana by the Jefferson administra- 
tion was in direct violation of the doctrines of that great party leader. The 
whole incident is an excellent illustration of the manner in which the 
Constitution has been expanded, not only by that "subtle corps of sap- 
pers and miners," as Jefferson called the judiciary, but also by the execu- 
tive branch of the Government. The power assumed by Congress over 
the territory thus acquired is an equally good example of the develop- 
ment of the Constitution through congressional action. Subsequently, 
the Supreme Court sustained the action of both the executive and the 
legislative branches of the Government. 

71. Jefferson on the Purchase of Louisiana} 

. . . The Constitution has made no provision for holding 
foreign territory, still less for incorporating foreign nations into 
the Union. The Executive, in seizing the fugitive occurrence 
which so much advances the good of the country, has done an 
act beyond the Constitution. The Legislators, in casting be- 
hind them metaphysical subtleties and risking themselves like 
faithful servants, must ratify and pay for it and throw them- 
selves on their country for doing for them unauthorized what 
we know they would have done for themselves, had they been 
in a situation to do it. . . . 

72. Senator Taylor on the Louisiana Treaty.^ 

There have been, Mr. President, two objections made against 
the treaty; one that the United States cannot constitutionally 
acquire territory; the other, that the treaty stipulates for the 
admission of a new State into the Union; a stipulation which 
the treaty-making power is unable to comply with. To these ob- 
jections I shall endeavor to give answers not heretofore urged. 

^ Thomas Jefferson to John C. Breckenridge, August 12, 1803. Writ- 
ings of Thomas Jefferson (Washington ed.), iv, 500-01. 

^ November 3, 1803. Annals of Congress, 8 Cong., i Sess., 49-52. 



238 NATIONAL SOVEREIGNTY 

Before a confederation, each State in the Union possessed a 
right, as attached to sovereignty, of acquiring territory, by 
war, purchase, or treaty. This right must be either still pos- 
sessed, or forbidden both to each State and to the General 
Government, or transferred to the General Government. It is 
not possessed by the States separately, because war and com- 
pacts with foreign Powers and with each other are prohibited 
to a separate State; and no other means of acquiring territory 
exist. By depriving every State of the means of exercising the 
right of acquiring territory, the Constitution has deprived each 
separate State of the right itself. Neither the means nor the 
right of acquiring territory are forbidden to the United States; 
on the contrary, in the fourth article of the Constitution, Con- 
gress is empowered "to dispose of and regulate the territory 
belonging to the United States." This recognises the right of 
the United States to hold territory. The means of acquiring 
territory consist of war and compact; both are expressly sur- 
rendered to Congress and forbidden to the several States; and 
no right in a separate State to hold territory without its limits 
is recognised by the Constitution, nor any mode of effecting it 
possible, consistent with it. The means of acquiring and the 
right of holding territory, being both given to the United 
States, and prohibited to each State, it follows that these 
attributes of sovereignty once held by each State are thus 
transferred to the United States; and that, if the means of 
acquiring and the right of holding, are equivalent to the right 
of acquiring territory, then this right merged from the separate 
States to the United States, as indispensably annexed to the 
treaty-making power, and the power of making war ; or , indeed, is 
literally given to the General Government by the Constitution. 

Having proved, sir, that the United States may constitu- 
tionally acquire, hold, dispose of, and regulate territory, the 
other objection to be considered is, whether the third article 
of the treaty does stipulate that Louisiana shall be erected into 
a State? It is conceded that the treaty-making power, cannot, 
by treaty, erect a new State, however they may stipulate for it. 
I premise, that in the construction of this article, it is proper 



POWER IN REGARD TO TERRITORY 239 

to recollect that the negotiators must be supposed to have 
understood our Constitution. It became very particularly 
their duty to do so, because, in this article itself, they have 
recited "the principles of the Constitution" as their guide. 
Hence, it is obvious, they did not intend to infringe, but to 
adhere to those principles, and therefore, if the article will 
admit of a construction consistent with this presumable know- 
ledge and intention of the negotiators, the probability of its 
accuracy will be greater than one formed in a supposition that 
the negotiators were either ignorant of that which they ought 
to have known, or that they fraudulently professed a purpose 
which they really intended to defeat. The following construc- 
tion is reconcilable with what the negotiators ought to have 
known, and with what they professed to intend. 

Recollect, sir, that it has been proved that the United States 
may acquire territory. Territory, so acquired, becomes from 
the acquisition itself a portion of the territories of the United 
States, or may be united with their territories without being 
erected into a State. An union of territory is one thing; of 
States, another. Both are exemplified by an actual existence. 
The United States possess territory, comprised in the union of 
territory, and not in the union of States. Congress is empowered 
to regulate or dispose of territorial sections of the Union, and 
have exercised the power; but it is not empowered to regulate 
or dispose of State sections of the Union. The citizens of these 
territorial sections are citizens of the United States, and they 
have all the rights of citizens of the United States; but such 
rights do not include those political rights arising from State 
compacts or governments, which are dissimilar in different 
States. Supposing the General Government or treaty-making 
power have no right to add or unite States and State citizens 
to the Union, yet they have a povs^er of adding or uniting to it, 
territory and territorial citizens of the United States. 

The territory is ceded by the first article of the treaty. It 
will no longer be denied that the United States may constitu- 
tionally acquire territory. The third article declares that "the 
inhabitants of the ceded territory shall be incorporated in the 



240 NATIONAL SOVEREIGNTY 

Union of the United States." And these words are said to 
require the territory to be erected into a State. This they do 
not express, and the words are Hterally satisfied by incorporat- 
ing them into the Union as a territory, and not as a State. The 
Constitution recognises and the practice warrants an incorpo- 
ration of a Territory and its inhabitants into the Union, with- 
out admitting either as a State. And this construction of the 
first member of the article is necessary to shield its two other 
members from a charge of surplusage, and even absurdity. 
For if the words "the inhabitants of the ceded territory shall be 
incorporated in the Union of the United States" intended that 
Louisiana and its inhabitants should become a State in the 
Union of States, there existed no reason for proceeding to stipu- 
late that these same inhabitants should be made " citizens as 
soon as possible, according to the principles of the Federal 
Constitution." Their admission into the Union of States would 
have made them citizens of the United States. Is it not then 
absurd to suppose that the first member of this third article, 
intended to admit Louisiana into the Union as a State, which 
would instantly entitle the inhabitants to the benefit of the 
article of the Constitution, declaring that "the citizens of 
each State shall be entitled to all the privileges and immunities 
of citizens in the several States," and yet to have gone on to 
stipulate for citizenship, under the limitation "as soon as 
possible, according to the principles of the Federal Constitu- 
tion" after it had been bestowed without limitation? Again; 
the concluding member of the article is to bestow "protection 
in the mean time;" incorporating this stipulation, and the 
stipulation for citizenship, with the construction which ac- 
cuses the treaty of unconstitutionahty, the article altogether 
must be understood thus, "the inhabitants of the ceded terri- 
tory shall be taken into the Union of States, which will in- 
stantly give them all the rights of citizenship, after which they 
shall be made citizens as soon as possible; and after they are 
taken into the Union of States, they shall be protected in the 
interim between becoming a State in the Union, and being 
made citizens, in their liberty, property and religion." 



POWER IN REGARD TO TERRITORY 241 

By supposing the first member of the article to require that 
the inhabitants and their territory shall be incorporated in the 
Union, in the known and recognised political character of a 
Territory, these inconsistencies are avoided, and the article 
reconciled to the Constitution, as understood by the opposers 
of the bill; the stipulation also for citizenship "as soon as 
possible" according to the principles of the Constitution, and 
the delay meditated by these words, and the subsequent words 
"in the mean time" so utterly inconsistent with the instanta- 
neous citizenship, which would follow an admission in the 
Union as a State, are both fully explained. Being incorporated 
in the Union as a Territory, and not as a State, a stipulation for 
citizenship became necessary; whereas it would have been 
unnecessary had the inhabitants been incorporated as a State, 
and not as a Territory. And as they were not to be invested 
with citizenship by becoming a State, the delay which would 
occur between the incorporation of the Territory into the 
Union and the arrival of the inhabitants to citizenship accord- 
ing to the principles of the Constitution, under some uniform 
rule of naturalization, exhibited an interim which demanded 
the concluding stipulation, for "protection in the meantime 
for hberty, property, and rehgion." As a State of the Union, 
they would not have needed a stipulation for the safety of their 
"liberty, property and religion;" as a Territory, this stipula- 
tion would govern and restrain the undefined power of Con- 
gress to make "rules and regulations for Territories." ... 

73. The American Insurance Company v. Canter.^ 

Mr. Chief Justice Marshall said in part: 

. . . The course which the argument has taken, will require 
that, in deciding this question, the court should take into view 
the relation in which Florida stands to the United States. 

The constitution confers absolutely on the government of 
the Union the powers of making war and of making treaties; 
consequently, that govermlient possesses the power of acquiring 
territory, either by conquest or by treaty. 

^ Supreme Court of the United States, 1828. i Peters, 51 ,., 



242 NATIONAL SOVEREIGNTY 

The usage of the world is, if a nation be not entirely sub- 
dued, to consider the holding of conquered territory as a mere 
military occupation, until its fate shall be determined at the 
treaty of peace. If it be ceded by the treaty, the acquisition is 
confirmed, and the ceded territory becomes a part of the nation 
to which it is annexed, either on the terms stipulated in the 
treaty of cession, or on such as its new master shall impose. 
On such transfer of territory, it has never been held that the 
relations of the inhabitants with each other undergo any change. 
Their relations with their former sovereign are dissolved, and 
new relations are created between them and the government 
which has acquired their territory. The same act which trans- 
fers their country, transfers the allegiance of those who remain 
in it; and the law, which may be denominated political, is 
necessarily changed, although that which regulates the inter- 
course and general conduct of individuals, remains in force 
until altered by the newly created power of the state. 

On the 2d of February, 1819, Spain ceded Florida to the 
United States. The 6th article of the treaty of cession, contains 
the following provision: "The inhabitants of the territories 
which his CathoHc Majesty cedes to the United States by this 
treaty, shall be incorporated in the Union of the United States, 
as soon as may be consistent with the principles of the federal 
constitution, and admitted to the enjoyment of the privileges, 
rights, and immunities of the citizens of the United States." 
This treaty is the law of the land, and admits the inhabitants 
of Florida to the enjoyment of the privileges, rights, and im- 
munities of the citizens of the United States. It is unnecessary 
to inquire whether this is not their condition, independent of 
stipulation. They do not, however, participate in political 
power ; they do not share in the government till Florida shall 
become a State. In the meantime, Florida continues to be a 
territory of the United States, governed by virtue of that clause 
in the constitution which empowers Congress " to make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States." 

Perhaps the power of governing a territory belonging to the 



POWER IN REGARD TO TERRITORY 243 

United States, which has not, by becoming a State, acquired 
the means of self-government, may result necessarily from the 
facts that it is not within the jurisdiction of any particular 
State, and is within the power and jurisdiction of the United 
States. The right to govern may be the inevitable consequence 
of the right to acquire territory. Whichever may be the source 
whence the power is derived, the possession of it is unques- 
tioned. In execution of it, Congress, in 1822, passed "an act 
for the establishment of a territorial government in Florida," 
and on the 3d of March, 1823, passed another act to amend the 
act of 1822. Under this act, the territorial legislature enacted 
the law now under consideration. . . . 

74. Power of Congress over Acquired Territory} 

The House resolved itself into a Committee of the Whole on 
the bill from the Senate, entitled, "An act to enable the Presi- 
dent of the United States to take possession of the territories 
ceded by France to the United States, by the treaty concluded 
at Paris on the thirtieth of April last, and for other purposes." 

[Sec. 2. And he it further enacted, That, until Congress shall 
have made provision for the temporary government of the 
said territories, all the military, civil, and judicial powers, 
exercised by the officers of the existing government of the same, 
shall be vested in such person and persons, and shall be exer- 
cised in such manner, as the President of the United States 
shall direct.] 

Mr. R. Griswold. — The powers proposed to be conferred 
by the gentleman are without hmits. It may be necessary for 
the welfare of the people, to secure their religion. The Presi- 
dent may be, therefore, constituted grand inquisitor, he may 
also be made a king, and likewise a judge, for the good of the 
people. I am not, said Mr. G., willing myself to give him such 
extensive powers. . . . 

As to the idea of some gentlemen, that this territory, not 

^ Debate in the House of Representatives, November 3, 1803. Annals 
of Congress, 8 Cong., i Sess., 49-52. 



244 NATIONAL SOVEREIGNTY 

being a part of the United States, but a colony, and that there- 
fore we may do as we please with it, it is not correct. If we 
acquire a colony by conquest or purchase — and I believe we 
may do both — it is not consistent with the Constitution to 
delegate to the President, even over a colony thus acquired, 
all power, legislative, executive, and judicial; for this would 
make him the despot of the colony. 

Mr. Rodney. — There is a wide distinction between States 
and Territories, and the Constitution appears clearly to indi- 
cate it. . . . By the third section of the fourth article of the 
Constitution, it is declared that "the Congress shall have power 
to dispose of and make all needful rules and regulations respect- 
ing the territory or other property belonging to the United 
States ; and nothing in this Constitution shall be so construed 
as to prejudice any claims of the United States or any particu- 
lar State." 

This provision does not limit or restrain the authority of 
Congress with respect to Territories, but vests them with full 
and complete power to exercise a sound discretion generally on 
the subject. . . . 

. . . But by a recurrence to the ordinance for the government 
of that Territory, and to the laws of Congress subsequently made, 
it will be seen that Congress have conceived themselves to be 
possessed of the right and have actually exercised the power, 
to alter the Territory, by adding to or taking from it as they 
thought proper, and by making rules variant from those under 
which it was originally organized. . . . Congress has a power 
in the Territories, which they cannot exercise in States; and 
that the limitations of power, found in the Constitution, are 
applicable to States and not to Territories. 

75. Sere et al. v. Pilot et al} 

Mr. Chief Justice Marshall for the Court said in part: 
. . . Whether the citizens of the Territory of Orleans are 
to be considered as the citizens of a State, within the meaning 
of the constitution, is a question of some difficulty, which 
^ Supreme Court of the United States, 18 10. 6 Cranch, 332. 



POWER IN REGARD TO TERRITORY 245 

would be decided, should one of them sue in any of the circuit 
courts of the United States. The present inquiry is limited to 
a suit brought by or against a citizen of the Territory, in 
the District Court of Orleans. The power of governing and of 
legislating for a Territory is the inevitable consequence of the 
right to acquire and to hold territory. Could this position be 
contested, the Constitution of the United States declares that 
''Congress shall have power to dispose of and make all needful 
rules and regulations respecting the territory or other property 
belonging to the United States." Accordingly, we find Con- 
gress possessing and exercising the absolute and undisputed 
power of governing and legislating for the Territory of Orleans. 
Congress has given them a legislative, an executive, and a judi- 
ciary with such powers as it has been their will to assign to 
those departments respectively. . . . 

76. New Orleans v. Winter et al} 

Mr. Chief Justice Marshall for the Court said in part: 
... It has been attempted to distinguish a Territory from 
the District of Columbia; but the court is of opinion, that this 
distinction cannot be maintained. They may differ in many 
respects, but neither of them is a State, in the sense in which 
that term is used in the Constitution. Every reason assigned 
for the opinion of the court, that a citizen of Columbia was not 
capable of suing in the courts of the United States, under the 
Judiciary Act, is equally applicable to a citizen of a Territory . 
Gabriel Winter, then, being a citizen of the Mississippi Terri- 
tory, was incapable of maintaining a suit alone in the Circuit 
Court of Louisiana. . . . 

^ Supreme Court of the United States, 1816. i Wheaton, 91. 



CHAPTER XXVII 

THE POWER OF THE FEDERAL JUDICIARY TO DECLARE 
ACTS OF CONGRESS VOID 

In the case of Marbury v. Madison the Supreme Court took under 
consideration an apphcation by one WiUiam Marbury for a writ of man- 
damus to be directed to James Madison, Secretary of State of the United 
States, requiring him to issue to the plaintiff a commission as justice of 
the peace. This commission, it was alleged, had been duly signed by the 
President of the United States and given to the Secretary of State for 
delivery. The delivery, however, had not been made. Chief Justice 
Marshall held that Marbury was entitled to his commission and that a 
writ of mandamus was a proper remedy. The Court then took under 
consideration the further question whether such a writ could issue from 
the Supreme Court. This was the first instance in which the Supreme 
Court declared against the validity of an act of Congress. 

77. Marbury v. Madison.'^ 

Mr. Chief Justice Marshall deHvered the opinion of the 
Court : 

The act to estabhsh the judicial courts of the United States 
authorizes the supreme court "to issue writs of mandamus, in 
cases warranted by the principles and usages of law, to any 
courts appointed, or persons holding office, under the authority 
of the United States." 

The Secretary of State, being a person holding an office 
under the authority of the United States, is precisely within 
the letter of the description ; and if this court is not authorized 
to issue a writ of mandamus to such an officer, it must be be- 
cause the law is unconstitutional, and therefore absolutely 
incapable of conferring the authority, and assigning the duties 
which its words purport to confer and assign. 

The constitution vests the whole judicial power of the United 
States in one supreme court, and such inferior courts as Con- 
gress shall, from time to time, ordain and establish. This power 
is expressly extended to all cases arising under the laws of the 
1 Supreme Court of the United States, 1803. i Cranch, 137. 



POWER OF FEDERAL JUDICIARY 247 

United States; and, consequently, in some form may be exer- 
cised over the present case ; because the right claimed is given 
by a law of the United States. 

In the distribution of this power it is declared that "the 
supreme court shall have original jurisdiction in all cases affect- 
ing ambassadors, other public ministers and consuls, and those 
in which a state shall be a party. In all other cases, the supreme 
court shall have appellate jurisdiction." . . . 

To enable this court, then, to issue a mandamus, it must be 
shown to be an exercise of appellate jurisdiction, or to be neces- 
sary to enable them to exercise appellate jurisdiction. . . . 

It is the essential criterion of appellate jurisdiction, that it re- 
vises and corrects the proceedings in a cause already instituted, 
and does not create that cause. Although, therefore, a manda- 
mus may be directed to courts, yet to issue such a writ to an 
officer for the delivery of a paper, is in effect the same as to 
sustain an original action for that paper, and, therefore, seems 
not to belong to appellate, but to original jurisdiction. Neither 
is it necessary in such a case as this, to enable the court to exer- 
cise its appellate jurisdiction. 

The authority, therefore, given to the supreme court, by the 
act establishing the judicial courts of the United States, to issue 
writs of mandamus to public officers, appears not to be war- 
ranted by the constitution ; and it becomes necessary to inquire 
whether a jurisdiction so conferred can be exercised. 

The question whether an act repugnant to the constitution 
can become the law of the land, is a question deeply interest- 
ing to the United States; but, happily, not of an intricacy pro- 
portioned to its interest. It seems only necessary to recognize 
certain principles, supposed to have been long and well estab- 
lished, to decide it. 

That the people have an original right to establish, for their 
future government, such principles as, in their opinion, shall 
most conduce to their own happiness, is the basis on which the 
whole American fabric has been erected. The exercise of this 
original right is a very great exertion; nor can it nor ought it 
to be frequently repeated. The principles, therefore, so estab- 



248 NATIONAL SOVEREIGNTY 

lished, are deemed fundamental. And as the authority from 
which they proceed is supreme, and can seldom act, they are 
designed to be permanent. 

This original and supreme will organizes the government, 
and assigns to different departments their respective powers. 
It may either stop here, or establish certain limits not to be 
transcended by those departments. 

The government of the United States is of the latter descrip- 
tion. The powers of the legislature are defined and limited; 
and that those limits may not be mistaken, or forgotten, the 
constitution is written. To what purpose are powers limited, 
and to what purpose is that limitation committed to writing, 
if these limits may, at any time, be passed by those intended .to 
be restrained? The distinction between a government with 
limited and unlimited powers is abolished, if those limits do 
not confine the persons on whom they are imposed, and if acts 
prohibited and acts allowed are of equal obligation. It is a 
proposition too plain to be contested, that the constitution 
controls any legislative act repugnant to it ; or, that the legis- 
lature may alter the constitution by an ordinary act. 

Between these alternatives there is no middle ground. The 
constitution is either a superior paramount law, unchangeable 
by ordinary means, or it is on a level with ordinary legislative 
acts, and, like other acts, is alterable when the legislature shall 
please to alter it. 

If the former part of the alternative be true, then a legisla- 
tive act contrary to the constitution is not law; if the latter 
part be true, then written constitutions are absurd attempts, 
on the part of the people, to limit a power in its own nature 
illimitable. 

Certainly all those who have framed written constitutions 
contemplate them as forming the fundamental and paramount 
law of the nation, and, consequently, the theory of every such 
government must be, that an act of the legislature, repugnant 
to the constitution, is void. 

This theory is essentially attached to a written constitution, 
and is consequently to be considered, by this court, as one of 



POWER OF FEDERAL JUDICIARY 249 

the fundamental principles of our society. It is not, therefore, 
to be lost sight of in the further consideration of this subject. 

If an act of the legislature, repugnant to the constitution, is 
void, does it, notwithstanding its invalidity, bind the courts, 
and oblige them to give it effect? Or, in other words, though it 
be not law, does it constitute a rule as operative as if it was a 
law? This would be to overthrow in fact what was established 
in theory; and would seem, at first view, an absurdity too gross 
to be insisted on. It shall, however, receive a more attentive 
consideration. 

It is emphatically the province and duty of the judicial 
department to say what the law is. Those who apply the rule 
to particular cases, must of necessity expound and interpret 
that rule. If two laws conflict with each other, the courts must 
decide on the operation of each. 

So if a law be in opposition to the constitution; if both the 
law and the constitution apply to a particular case, so that the 
court must either decide that case conformably to the law, dis- 
regarding the constitution, or conformably to the constitution, 
disregarding the law, the court must determine which of these 
conflicting rules governs the case. This is of the very essence 
of judicial duty. 

If, then, the courts are to regard the constitution, and the 
constitution is superior to any ordinary act of the legislature, 
the constitution, and not such ordinary act, must govern the 
case to which they both apply. 

Those, then, who controvert the principle that the constitu- 
tion is to be considered, in court, as a paramount law, are 
reduced to the necessity of maintaining that courts must close 
their eyes on the constitution, and see only the law. 

This doctrine would subvert the very foundation of all writ- 
ten constitutions. It would declare that an act which, accord- 
ing to the principles and theory of our government, is entirely 
void, is yet, in practice, completely obligatory. It would 
declare that if the legislature shall do what is expressly forbid- 
den, such act, notwithstanding the express prohibition, is in 
reaUty effectual. It would be giving to the legislature a practi- 



250 NATIONAL SOVEREIGNTY 

cal and real omnipotence, with the same breath which professes 
to restrict their powers within narrow limits. It is prescribing 
limits, and declaring that those limits may be passed at 
pleasure. 

That it thus reduces to nothing what we have deemed the 
greatest improvement on political institutions, a written consti- 
tution, would of itself be sufficient, in America, where written 
constitutions have been viewed with so much reverence, for 
rejecting the construction. But the peculiar expressions of the 
constitution of the United States furnish additional arguments 
in favor of its rejection. 

The judicial power of the United States is extended to all 
cases arising under the constitution. 

Could it be the intention of those who gave this power, to 
say that in using it the constitution should not be looked into? 
That a case arising under the constitution should be decided 
without examining the instrument under which it arises? 

This is too extravagant to be maintained. 

In some cases, then, the constitution must be looked into by 
the judges. And if they can open it at all, what part of it are 
they forbidden to read or to obey? 

There are many other parts of the constitution which serve 
to illustrate this subject. 

It is declared that "no tax or duty shall be laid on articles 
exported from any State." Suppose a duty on the export of 
cotton, of tobacco, or of flour; and a suit instituted to recover it. 
Ought judgment to be rendered in such a case? ought the judges 
to close their eyes on the constitution, and only see the law? 

The constitution declares "that no bill of attainder or ex post 
facto law shall be passed." 

If, however, such a bill should be passed, and a person should 
be prosecuted under it, must the court condemn to death 
those victims whom the constitution endeavors to preserve? 

"No person," says the constitution, "shall be convicted of 
treason unless on the testimony of two witnesses to the same 
overt act, or on confession in open court." 

Here the language of the constitution is addressed especially 



POWER OF FEDERAL JUDICIARY 251 

to the courts. It prescribes, directly for them, a rule of evidence 
not to be departed from. If the legislature should change that 
rule, and declare one witness, or a confession out of court, suffi- 
cient for conviction, must the constitutional principle yield to 
the legislative act? 

From these, and many other selections which might be made, 
it is apparent that the framers of the constitution contem- 
plated that instrument as a rule for the government of courts, 
as well as of the legislature. 

Why otherwise does it direct the judges to take an oath to 
support it? This oath certainly applies in an especial manner 
to their conduct in their official character. How immoral to 
impose it on them, if they were to be used as the instruments, 
and the knowing instruments, for violating what they swear to 
support ! 

The oath of office, too, imposed by the legislature, is com- 
pletely demonstrative of the legislative opinion on this subject. 
It is in these words: "I do solemnly swear that I will admin- 
ister justice without respect to persons, and do equal right to 
the poor and to the rich ; and that I will faithfully and impar- 
tially discharge all the duties incumbent on me as , accord- 
ing to the best of my abilities and understanding, agreeably to 
the constitution and laws of the United States." 

Why does a judge swear to discharge his duties agreeably to 
the constitution of the United States, if that constitution forms 
no rule for his government — if it is closed upon him, and can- 
not be inspected by him? 

If such be the real state of things, this is worse than solemn 
mockery. To prescribe, or to take this oath, becomes equally 
a crime. 

It is also not entirely unworthy of observation, that in de- 
claring what shall be the supreme law of the land, the constitu- 
tion itself is first mentioned; and not the laws of the United 
States generally, but those only which shall be made in pursu- 
ance of the constitution, have that rank. 

Thus, the particular phraseology of the constitution of the 
United States confirms and strengthens the principle, supposed 



252 NATIONAL SOVEREIGNTY 

to be essential to all written constitutions, that a law repug- 
nant to the constitution is void; and that courts, as well as 
other departments, are bound by that instrument. 

78. Jefferson on the Usurpation of the Federal Judiciary} 

In denying the right they usurp, of exclusively explaining the 
constitution, I go further than you do, if I understand rightly 
your quotation, from The Federalist, of an opinion that "the 
judiciary is the last resort in relation to the other departments of 
the government, but not in relation to the rights of the parties 
to the compact under which the judiciary is derived." If this 
opinion be sound, then indeed is our constitution a complete 
felo de se. For intending to establish three departments, co- 
ordinate and independent, that they might check and balance 
one another, it has given, according to this opinion, to one of 
them alone, the right to prescribe rules for the government of 
the others, and to that one too, which is unelected by, and inde- 
pendent of the nation. For experience has already shown that 
the impeachment it has provided is not even a scare-crow; that 
such opinions as the one you combat, sent cautiously out, as you 
observe also, by detachment, not belonging to the case often, 
but sought for out of it, as if to rally the public opinion before- 
hand to their views, and to indicate the line they are to walk 
in, have been so quietly passed over as never to have excited 
animadversion, even in a speech of any one of the body en- 
trusted with impeachment. 

The constitution, on this hypothesis, is a mere thing of wax 
in the hands of the judiciary which they may twist and shape 
into any form they please. It should be remembered, as an 
axiom of eternal truth in politics, that whatever power in any 
government is independent, is absolute also ; in theory only at 
first, while the spirit of the people is up, but in practice, as fast 
as that relaxes. Independence can be trusted nowhere but with 
the people in mass. They are inherently independent of all but 
moral law. My construction of the constitution is very differ- 

1 Jefferson to Judge Roane, September 6, 1819. Writings of Thomas 
Jefferson (Washington. ed.), vn, 134-35. 



POWER OF FEDERAL JUDICIARY 253 

ent from that you quote. It is that each department is truly 
independent of the others, and has an equal right to decide for 
itself what is the meaning of the constitution in the cases sub- 
mitted to its action; and especially, where it is to act ultimately 
and without appeal. I will explain myself by examples, which, 
having occurred while I was in office, are better known to me, 
and the principles which governed them. 



CHAPTER XXVIII 

PENNSYLVANIA AND THE FEDERAL JUDICIARY 

The prolonged controversy between Pennsylvania and the federal 
judiciary dated back to 1779, when the Committee or Court of Appeals 
of the old Congress reversed the judgment of the Pennsylvania Court of 
Admiralty in the case of the sloop Active. The resistance of Pennsylvania 
led Gideon Olmstead and others who claimed the award to bring suit in 
the federal district court, over which Judge Peters presided. The decision 
was again in favor of Olmstead, but again the legislature of Pennsylvania 
interposed to prevent the payment of the prize money. The Attorney- 
General then applied to the Supreme Court, in behalf of Olmstead, for 
a writ of mandamus commanding Judge Peters to enforce his judgment. 
Chief Justice Marshall granted the writ in the following opinion. The 
writ was issued, but the federal marshal was prevented from serving it by 
a body of State militia. He then summoned a posse comitatus of two thou- 
sand men. Bloodshed seemed imminent, but after some delay the Penn- 
sylvania authorities gave way and paid over the sum in dispute. Later, 
the commanding ofhcer of the State militia and others who had resisted 
the United States marshal were indicted and sentenced to- fine and 
imprisonment. President Madison pardoned them, however, on the 
ground that "they had acted under a mistaken sense of duty." The para- 
mount authority of the National Government was thus sustained at every 
point in the controversy. The appended resolutions were passed by the 
legislature of Pennsylvania in the heat of the controversy. They met with 
no approval in other States. On the contrary, the legislature of Virginia 
pointed out "that a tribunal is already provided by the Constitution of 
the United States, to wit: the Supreme Court, more eminently qualified 
from their habits and duties, from the mode of their selection, and from 
the tenure of their offices, to decide the disputes aforesaid in an enlight- 
ened and impartial manner, than any other tribunal which could be 
erected." 

79. The United States v. Judge Peters} 

Mr. Chief Justice Marshall delivered the opinion of the 
Court as follows: 

With great attention, and with serious concern, the court 

has considered the return made by the judge for the District 

of Pennsylvania to the mandamus directing him to execute the 

sentence pronounced by him in the case of Gideon Olmstead and 

^ Supreme Court of the United States, 1809. 5 Cranch, 135. 



PENNSYLVANIA AND THE JUDICIARY 255 

others v. Rittenhouse^ s Executrixes, or to show cause for not so 
doing. The cause shown is an act of the legislature of Penn- 
sylvania, passed subsequent to the rendition of his sentence. 
This act authorizes and requires the governor to demand, for 
the use of the state of Pennsylvania, the money which had 
been decreed to Gideon Olmstead and others; and which was 
in the hands of the executrixes of David Rittenhouse; and, in 
default of payment, to direct the Attorney General to institute 
a suit for the recovery thereof. This act further authorizes and 
requires the governor to use any further means he may think 
necessary for the protection of what it denominates "the just 
rights of the state," and also to protect the persons and proper- 
ties of the said executrixes of David Rittenhouse, deceased, 
against any process whatever, issued out of any federal court in 
consequence of their obedience to the requisition of the said act. 

If the legislatures of the several states may, at will, annul 
the judgment of the courts of the United States, and destroy 
the rights acquired under those judgments, the constitution 
itself becomes a solemn mockery, and the nation is deprived of 
the means of enforcing its laws by the instrumentality of its 
own tribunals. So fatal a result must be deprecated by all; 
and the people of Pennsylvania, not less than the citizens of 
every other state, must feel a deep interest in resisting princi- 
ples so destructive of the Union and in averting consequences 
so fatal to themselves. 

The act in question does not, in terms, assert the universal 
right of the state to interpose in every case whatever; but 
assigns, as a motive for its interposition in this particular case, 
that the sentence, the execution of which it prohibits, was ren- 
dered in a cause over which the federal courts have no jurisdic- 
tion. 

If the ultimate right to determine the jurisdiction of the 
courts of the Union is placed by the constitution in the several 
state legislatures, then this act concludes the subject; but if 
that power necessarily resides in the supreme judicial tribunal 
of the nation, then the jurisdiction of the District Court of 
Pennsylvania, over the case in which that jurisdiction was 



256 NATIONAL SOVEREIGNTY 

exercised, ought to be most deliberately examined; and the 
act of Pennsylvania, with whatever respect it may be consid- 
ered, cannot be permitted to prejudice the question. 

In the early part of the war between the United States and 
Great Britain, Gideon Olmstead and others, citizens of Con- 
necticut, who say they had been carried to Jamaica as prison- 
ers, were employed as part of the crew of the sloop Active, 
bound from Jamaica to New York, and laden with a cargo for 
the use of the British army in that place. On the voyage they 
seized the vessel, confined the captain, and sailed for Egg Har- 
bor. In sight of that place, the Active was captured by the 
Convention, an armed ship belonging to the state of Pennsyl- 
vania, brought into port, libeled and condemned as prize to the 
captors. From this sentence Gideon Olmstead and others, who 
claimed the vessel and cargo, appealed to the Court of Appeals 
established by Congress, by which tribunal the sentence of 
condemnation was reversed, the Active and her cargo con- 
demned as prize to the claimants, and process was directed to 
issue out of the Court of Admiralty, commanding the marshal 
of that court to sell the said vessel and cargo, and to pay the 
net proceeds to the claimants. 

The mandate of the appellate court was produced in the 
inferior court, the judge of which admitted the general juris- 
diction of the court established by Congress, as an appellate 
court, but denied its power to control the verdict of a jury 
which had been rendered in favor of the captors, the officers 
and crew of the Convention; and therefore refused obedience 
to the mandate; but directed the marshal to make the sale, 
and, after deducting charges, to bring the residue of the money 
into court, subject to its future order. 

The claimants then applied to the judges of appeals for an 
injunction to prohibit the marshal from paying the money, 
arising from the sales, into the Court of Admiralty; which was 
awarded, and served upon him : in contempt of which, on the 
4th of January, 1778, he paid the money to the judge, who 
acknowledged the receipt thereof at the foot of the marshal's 
return. 



PENNSYLVANIA AND THE JUDICIARY 257 

On the ist of May, 1779, George Ross, the judge of the Court 
of Admiralty, delivered to David Rittenhouse, who was then 
treasurer of the state of Pennsylvania, the sum of 11,496/. gs. 
gd., in loan-ofSce certificates; which was the proportion of the 
prize money to which that state would have been entitled, had 
the sentence of the Court of Admiralty remained in force. On 
the same day, David Rittenhouse executed a bond of indem- 
nity to George Ross, in which, after reciting that the money 
was paid to him for the use of the state of Pennsylvania, he 
binds himself to repay the same, should the said George Ross 
be thereafter compelled, by due course of law, to pay that sum 
according to the decree of the Court of Appeals. 

These loan-office certificates were in the name of Matthew 
Clarkson, who was marshal of the Court of Admiralty, and were 
dated the 6th of November, 1778. Indents were issued on them 
to David Rittenhouse, and the whole principal and interest were 
afterwards funded by him, in his own name, under the act of 
Congress making provision for the debt of the United States. 

Among the papers of David Rittenhouse was a memorandum, 
made by himself at the foot of a list of the certificates men- 
tioned above, in these words : *' Note. The above certificates will 
be the property of the state of Pennsylvania, when the state 
releases me from the bond I gave in 1778, to indemnify George 
Ross, Esq., judge of the admiralty, for paying the 50 original 
certificates into the treasury, as the state's share of the prize." 

The state did not release David Rittenhouse from the bond 
mentioned in this memorandum. These certificates remained 
in the private possession of David Rittenhouse, who drew the 
interest on them during his life, and after his death they re- 
mained in possession of his representatives; against whom the 
libel in this case was filed, for the purpose of carrying into 
execution the decree of the Court of Appeals. 

While this suit was depending, the state of Pennsylvania 
forbore to assert its title, and, in January, 1803, the court 
decreed in favor of the libellants; soon after which, the legis- 
lature passed the act which has been stated. 

It is contended that the federal courts were deprived of 



258 NATIONAL SOVEREIGNTY 

jurisdiction, in this cause, by that amendment of the constitu- 
tion which exempts states from being sued in those courts by 
individuals. This amendment declares, "that the judicial 
power of the United States shall not be construed to extend to 
any suit, in law or equity, commenced or prosecuted against 
one of the United States by citizens of another state, or by 
citizens or subjects of any foreign state." . 

The right of a state to assert, as plaintiff, any interest it 
may have in a subject, which forms the matter of controversy 
between individuals, in one of the courts of the United States, 
is not affected by this amendment; not can it be so construed 
as to oust the court of its jurisdiction, should such claim be 
suggested. The amendment simply provides, that no suit shall 
be commenced or prosecuted against a state. The state cannot 
be made a defendant to a suit brought by an individual ; but it 
remains the duty of the courts of the United States to decide 
all cases brought before them by citizens of one state against 
citizens of a different state, where a state is not necessarily a 
defendant. In this case, the suit was not instituted against 
the state or its treasurer, but against the executrixes of David 
Rittenhouse, for the proceeds of a vessel condemned in the 
court of admiralty, which were admitted to be in their posses- 
sion. If these proceeds had been the actual property of Penn- 
sylvania, however wrongfully acquired, the disclosure of that 
fact would have presented a case on which it is unnecessary to 
give an opinion; but it certainly can never be alleged that a 
mere suggestion of title in a state to property, in possession of 
an individual, must arrest the proceedings of the court, and 
prevent their looking into the suggestion, and examining the 
validity of the title. 

If the suggestion in this case be examined, it is deemed 
perfectly clear that no title whatever to the certificates in 
question was vested in the state of Pennsylvania. 

By the highest judicial authority of the nation it has been 
long since decided, that the Court of Appeals erected by Con- 
gress had full authority to revise and correct the sentence of 
the courts of admiralty of the several states, in prize causes. 



PENNSYLVANIA AND THE JUDICIARY 259 

That question, therefore, is at rest. Consequently, the decision 
of the Court of Appeals in this case annulled the sentence 
of the Court of Admiralty, and extinguished the interest of the 
state of Pennsylvania in the Active and her cargo, which was 
acquired by that sentence. The full right to that property was 
immediately vested in the claimants, who might rightfully 
pursue it, into whosesoever hands it might come. These 
certificates, in the hands, first, of Matthew Clarkson, the 
marshal, and afterwards of George Ross, the judge of the Court 
of Admiralty, were the absolute property of the claimants. 
Nor did they change their character on coming into the pos- 
session of David Rittenhouse. 

Although Mr. Rittenhouse was treasurer of the state of 
Pennsylvania, and the bond of indemnity which he executed 
states the money to have been paid to him for the use of the 
state of Pennsylvania, it is apparent that he held them in his 
own right, until he should be completely indemnified by the 
state. The evidence to this point is conclusive. The original 
certificates do not appear to have been deposited in the state 
treasury, to have been designated in any manner as the pro- 
perty of the state, or to have been delivered over to the suc- 
cessor of David Rittenhouse. They remained in his possession. 
The indents, issued upon them for interest, were drawn by 
David Rittenhouse, and preserved with the original certificates. 
When funded as part of the debt of the United States, they 
were funded by David Rittenhouse, and the interest was drawn 
by him. The note made by himself at the foot of the list, which 
he preserved, as explanatory of the whole transaction, demon- 
strates that he held the certificates as security against the bond 
he had executed to George Ross; and that bond was obligatory, 
not on the state of Pennsylvania, but on David Rittenhouse, 
in his private capacity. 

These circumstances demonstrate, beyond the possibility of 
doubt, that the property which represented the Active and her 
cargo, was in possession, not of the state of Pennsylvania, but 
of David Rittenhouse as an individual ; after whose death it 
passed, like other property, to his representatives. 



26o NATIONAL SOVEREIGNTY 

Since, then, the state of Pennsylvania had neither possession 
of, nor right to, the property on which the sentence of the Dis- 
trict Court was pronounced, and since the suit was neither 
commenced nor prosecuted against that state, there remains 
no pretext for the allegation that the case is within that amend- 
ment of the constitution which has been cited; and, conse- 
quently,the state of Pennsylvania can possess no constitutional 
right to resist the legal process which may be directed in this 
cause. 

It will be readily conceived that the order which this court 
is enjoined to make by the high obligations of duty and of law, 
is not made without extreme regret at the necessity which has 
induced the application. But it is a solemn duty, and therefore 
must be performed. A peremptory mandamus must be awarded. 

80. Resolutions of the Legislature of Pennsylvania. ^ 

. . . And whereas the causes and reasons which have pro- 
duced this conflict between the General and State govern- 
ments should be made known, not only that the State may be 
justified to her sister States, who are equally interested in the 
preservation of the State rights; but to evince to the Govern- 
ment of the United States that the Legislature, in resisting 
encroachments on their rights, are not acting in a spirit of 
hostility to the legitimate powers of the United States' courts; 
but are actuated by a disposition to compromise, and to guard 
against future collisions of power, by an amendment to the 
Constitution : and that, whilst they are contending for therights 
of the State, that it will be attributed to a desire of preserv- 
ing the Federal Government itself, the best features of which 
must depend upon keeping up a just balance between the 
General and State governments, as guaranteed by the Con- 
stitution. . . . 

Therefore, 

Resolved by the Senate and House of Representatives of the 
Commonwealth of Pennsylvania, &c. That, as a member of the 

1 April 3, 1809. Annals of Congress, 11 Cong., 2 Sess., Appendix, 2253- 
69 passim. 



PENNSYLVANIA AND THE JUDICIARY 261 

Federal Union, the Legislature of Pennsylvania acknowledges 
the supremacy, and will cheerfully submit to the authority 
of the General Government, as far as that authority is delegated 
by the Constitution of the United States. But, whilst they 
yield to this authority, when exercised within Constitutional 
limits, they trust they will not be considered as acting hostile 
to the General Government, when, as guardians of the State 
rights, they can not permit an infringement of those rights, 
by an unconstitutional exercise of power in the United States' 
courts. 

Resolved, That in a Government like that of the United 
States, where there are powers granted to the General Govern- 
ment, and rights reserved to the States, it is impossible, from 
the imperfections of language, so to define the limits of each, 
that difficulties should not sometimes arise from a collision 
of powers : and it is to be lamented, that no provision is made in 
the Constitution for determining disputes between the General 
and State governments by an impartial tribunal, when such 
cases occur. 

Resolved, That from the construction the United States' 
courts give to their powers, the harmony of the States, if they 
resist encroachments on their rights, will frequently be inter- 
rupted ; and if to prevent this evil, they should, on all occasions 
yield to stretches of power, the reserved rights of the States 
will depend on the arbitrary power of the courts. 

Resolved, That, should the independence of the States, as 
secured by the Constitution, be destroyed, the liberties of the 
people in so extensive a country cannot long survive. To suffer 
the United States' courts to decide on State rights will, from 
a bias in favor of power, necessarily destroy the Federal part 
of our Government: And whenever the government of the 
United States becomes consolidated, we may learn from the 
history of nations what will be the event. 

To prevent the balance between the General and State 
governments from being destroyed, and the harmony of the 
States from being interrupted. 

Resolved, That our Senators in Congress be instructed, and 



262 NATIONAL SOVEREIGNTY 

our Representatives requested, to use their influence to procure 
an amendment to the Constitution of the United States, that 
an impartial tribunal may be established to determine disputes 
between the General and State governments; and, that they 
be further instructed to use their endeavors, that in the mean- 
while, such arrangements may be made, between the Govern- 
ments of the Union and of this State, as will put an end to 
existing difficulties. 

Resolved, That the Governor be requested to transmit a copy 
of these resolutions, to the Executive of the United States, to 
be laid before Congress, at their next session. And that he be 
authorized and directed to correspond with the President on 
the subject in controversy, and to agree to such arrangements 
as may be in the power of the Executive to make, or that Con- 
gress may make, either by the appointment of commissioners 
or otherwise, for settling the difi&culties between the two 
Governments. 

And, That the Governor be also requested to transmit a 
copy to the Executives of the several States in the Union with 
a request, that they may be laid before their respective Legis- 
latures. ... 



CHAPTER XXIX 

NULLIFICATION IN NEW ENGLAND 

The hostility of New England to the embargo policy of Jefferson was 
due to both economical and political considerations. The embargo was 
urged as the alternative to war; but even so the people of New England 
were put to a severe test. A temporary interdiction of trade might have 
been borne with a degree of equanimity; but a long-continued embargo 
was considered a blow aimed at Federalist commerce and trade. Evasion 
of the laws was carried to such a point that Jefferson was obliged to re- 
commend measures of enforcement which he admitted were odious and 
dangerous. The legislatures of Massachusetts, Rhode Island, and Con- 
necticut pronounced these acts unjust, oppressive, and unconstitutional. 
Connecticut went still further, and refused to comply with the demands 
of the National Government for the use of State militia to enforce the 
embargo. 

A similar attitude was assumed by Massachusetts during the War of 
1812, which the Federalists denounced as a "party and not a national 
war." When General Dearborn made requisition for militia for service 
in defense of the coast, Governor Strong refused to obey the call. His 
reasons for not complying are stated in his correspondence, and were 
indorsed by the judges of the supreme court of the State. But in the case 
of Martin v. Mott, fifteen years later, the Supreme Court of the United 
States took an adverse view of the position assumed by the New England 
authorities.' 

81. Secretary of War to the Governor of Connecticut.^ 

Sir, — The pressure of the embargo although sensibly felt by 
every description of our fellow citizens, has yet been cheerfully 
borne by most of them, under a conviction that it was a tem- 
porary evil, and a necessary one to save us from greater and 
more permanent evils, the loss of property and surrender of 
rights: but it would have been more cheerfully borne but for 
the knowledge that, while honest men were religiously observ- 
ing it, the unprincipled along our sea-coasts and frontiers, were 
fraudulently evading it : and that in some parts they had even 
dared to break through it openly by an armed force too power- 
ful to be opposed by the collector and his assistants. 

^ American Register (1809), 177-78. January 18, 1809. 



264 NATIONAL SOVEREIGNTY 

To put an end to this scandalous insubordination to the laws, 
the legislature has authorized the president of the United 
States to empower proper persons to employ militia for pre- 
venting or suppressing armed or riotous assemblages of persons 
resisting the custom-house officers in the exercise of their 
duties, or opposing or violating the embargo laws. He sin- 
cerely hopes that during the short time these restrictions are 
expected to continue, no other instances will take place of a 
crime of so deep a die. But it is made his duty, to take the 
measures necessary to meet it. He has directed me, therefore, 
to request you, as commanding officer of the militia of your 
state, to appoint some officer of the militia, of known respect 
for the laws, in or near to each port of entry within your state, 
with orders, when applied to by the collector of the district to 
assemble immediately a sufficient force of his militia, and to 
employ them efficaciously to maintain the authority of the 
laws respecting the embargo; and that you notify to each 
collector the officer to whom by your appointment he is to 
apply for aid when necessary. The president has referred this 
appointment to your excellency, because your knowledge of 
characters, or means of obtaining it, will enable you to select 
one who can be most confided in to exercise so serious a power, 
with all the discretion, the forbearance, the kindness, even, 
which the enforcement of the law will possibly admit; ever 
bearing in mind that the life of a citizen is never to be endan- 
gered but as the last melancholy effort for the maintenance of 
order and obedience to the laws. 

Your excellency will please to instruct the officers so ap- 
pointed, to have correct muster and pay rolls made out and 
transmitted to this department, of such militia as they may 
find it necessary, in the execution of their duties to call into 
actual service. ... 

82. Governor of Connecticut to the Secretary of War.^ 

Sir, — I have received your letter of the i8th January, con- 
veying to me a request of the president of the United States, 
^ American Register (1809), 178-79. February 4, 1809. 



NULLIFICATION IN NEW ENGLAND 265 

that as commander in chief of the militia of this state, I would 
appoint a select number of officers of our militia, to whom 
the collectors of the customs may apply for military aid in 
certain cases, which may hy them, be thought necessary for 
compelling obedience to the laws of Congress enforcing the em- 
bargo. . . . 

I have reflected that neither the constitution, nor statute of 
this state, have given to the commander in chief of its militia, 
any authority to make such appointment of officers as has been 
requested ; nor does my information suggest to me, any author- 
ity given to the president of the United States, derived either 
from the constitution or laws of the United States, to call upon 
the executive of an individual state to take an agency in 
appointments, such as are contemplated by the request men- 
tioned. 

Conceiving also as I do, and believing it to be the opinion of 
the great mass of the citizens of this state, that the late law of 
Congress for the more rigorous enforcement of the embargo, 
is unconstitutional in many of its provisions, interfering with 
the state sovereignties, and subversive of the guaranteed 
rights, privileges and immunities of the citizens of the United 
States; I have from these considerations, deemed it peculiarly 
and highly improper for a state executive to contribute his 
volunteer aid in support of laws bearing such an aspect. 

And when I reflect upon the extent of measures which must 
probably be resorted to for the enforcement of this law; a law 
which from the means contemplated for its support and execu- 
tion, it would seem is to require all the military and naval force 
of the union, I cannot suppress my deep anxiety for the events 
it may produce. 

I might also a'dd, that I cannot be induced to risk my 
responsibility to the public by contributing towards placing a 
"serious power" in the hands, and at the disposal of men in 
whom I should not be able, in all instances, to repose the fullest 
confidence; more especially, when their individual acts and 
measures, may not always be under the regulation of the best 
motives, and when their proceedings in execution of this law, 



266 NATIONAL SOVEREIGNTY 

will naturally tend to put at extreme hazard, the peace, lives, 
property and dearest rights of our fellow-citizens. 

Under this view therefore of the subject, and with these 
considerations before me, my mind has been led to a serious 
and decided determination to decline a compliance with your 
request, and to have no agency in the appointments which the 
president has been pleased to refer to me. 

While I take the liberty of thus declining this agency, you 
will be pleased to recollect, that on all former occasions, when 
constitutional applications have been made to this state, for the 
execution of the constitutional laws and requisitions of the 
union, the promptitude and readiness of their compliance, 
have merited and received the approbation, if not the applause, 
of the general administration of the United States. . . . 

83. Resolutions of the General Assembly of Connecticut.^ 

. . . After solemn deliberation and advisement thereon, the 
general assembly are decided in the opinion, and do resolve, 
that the acts aforesaid are a permanent system of measures, 
abandoning undeniable rights; interdicting the exercise of 
constitutional privileges, and unprecedented in the annals of 
nations; and do contain provisions for exercising arbitrary 
powers, grievous to the good people of this state, dangerous 
to their common liberties, incompatible with the constitution 
of the United States, and encroaching upon the immunities of 
this state. 

Resolved, That to preserve the union, and support the consti- 
tution of the United States, it becomes the duty of the legisla- 
ture of the states, in such a crisis of affairs, vigilantly to watch 
over, and vigorously to maintain, the powers not delegated to 
the United States, but reserved to the states respectively, or 
to the people; and that a due regard to this duty, will not per- 
mit this assembly to assist, or concur in giving effect to the 
aforesaid unconstitutional acts. 

Resolved, That this assembly highly approve of the conduct 
of his excellency the governor, in declining to designate per- 
1 American Register (1809), 180-81. March i, 1809. 



NULLIFICATION IN NEW ENGLAND 267 

sons to carry into effect, by the aid of military power the act of 
the United States, enforcing the embargo, and that his letter, 
addressed to the secretary for the department of war, contain- 
ing his refusal to make such designation, be recorded in the 
public records of this state, as an example to persons, who may 
hold places of distinguished trust, in this free and independent 
republic. 

Resolved, That the persons holding executive offices under 
this state, are restrained by the duties which they owe this 
state, from affording any official aid or co-operation in the 
execution of the acts aforesaid; and that his excellency the 
governor be requested, as commander in chief of the military 
force of this state, to cause these resolutions to be published in 
general orders : And that the secretary of this state be, and he is 
hereby directed to transmit copies of the same to the several 
sheriffs and town clerks. 

Resolved, That his excellency the governor be requested to 
communicate the foregoing resolutions to the president of the 
United States, with an assurance that this assembly regret, 
that they are thus obliged under a sense of paramount public 
duty, to assert the unquestionable rights of this state, to 
abstain from any agency in the execution of measures, which 
are unconstitutional and despotic. 

Resolved, That this assembly accord in sentiment, with the 
senate and house of representatives, of the commonwealth of 
Massachusetts, that it is expedient to effect certain alterations 
in the constitution of the United States; and will zealously 
co-operate with that commonwealth and any other of the 
states, in all legal and constitutional measures for procuring 
such amendments to the constitution of the United States, as 
shall be judged necessary to obtain more effectual protection 
and defence for commerce; and to give to the commercial states 
their fair and just consideration in the union, and for affording 
permanent security, as well as present relief, from the oppres- 
sive measures under which they now suffer. . . . 



268 NATIONAL SOVEREIGNTY 

84. Governor of Massachusetts to the Secretary of War} 

... As an opinion generally prevailed, that the Governor 
had no authority to call the militia into actual service, unless 
one of the exigencies contemplated by the Constitution exists, 
I thought it expedient to call the council together, and, having 
laid before them your letter, and those I have received from 
General Dearborn, I requested their advice on the subject 
of them. 

The Council advised "that they were unable from a view of 
the Constitution of the United States, and the letters aforesaid, 
to perceive that any exigency exists which can render it advis- 
able to comply with said requisition. But, as upon important 
questions of law, and upon solemn occasions, the Governor 
and Council have authority to require the opinion of the Jus- 
tices of the Supreme Judicial Court, it is advisable to request the 
opinion of the Supreme Court upon the following questions, viz. : 

" ist. Whether the commanders in chief of the militia of the 
several states have a right to determine, whether any of the 
exigencies contemplated by the Constitution of the United 
States exist; so as to require them to place the militia, or any 
part of it, in the service of the United States, at the request of 
the President, to be commanded by him pursuant to acts of 
Congress?" 

" 2nd. Whether, when either of the exigencies exist, author- 
izing the employing the militia in the service of the United 
States, the militia thus employed, can be lawfully commanded 
by any officer, but of the militia, except by the President of the 
United States?" 

I enclose a copy of the answer given by the judges to these 
questions. ... I am fully disposed to afford all the aid to the 
measures of the national government which the Constitution 
requires of me, but I presume it will not be expected, or 
desired, that I shall fail in the duty which I owe to the people 
of this state, who have confided their interests to my care. 

1 Senate Documents, 13 Cong., 3 Sess., Report of the Committee on Mil- 
itary Ajffairs, February 28, 181 5, 34-48, passim. 



NULLIFICATION IN NEW ENGLAND 269 

85. Opinionojthe Judges of the Supreme Court of Massachusetts } 

On the construction of the Federal and State constitutions 
must depend the answers to the several questions proposed. 
As the mihtia of the several states may be employed in the 
service of the United States, for the three specific purposes of 
executing the laws of the Union, of suppressing insurrections, 
and of repelling invasions, the opinion of the judges is requested, 
whether the Commanders-in-Chief of the militia of the several 
states have a right to determine whether any of the exigencies 
aforesaid exist so as to require them to place the militia, or 
any part of it, in the service of the United States, at the request 
of the President, to be commanded by him pursuant to acts 
of Congress. 

It is the opinion of the undersigned, that this right is vested 
in the Commanders-in-Chief of the militia of the several states. 

The Federal Constitution provides, that whenever either of 
these exigencies exist, the militia may be employed, pursuant 
to some act of Congress, in the service of the United States; 
but no power is given, either to the President or to Congress, 
to determine that either of the said exigencies do in fact exist. 
As this power is not delegated to the United States by the 
Federal Constitution, nor prohibited by it to the states, it is 
reserved to the states, respectively; and from the nature of the 
power, it must be exercised by those with whom the states have 
respectively entrusted the chief command of the militia. 

It is the duty of these commanders to execute this important 
trust, agreeably to their several states, respectively, without 
respect to the laws or officers of the United States, in all cases, 
except those specially provided in the Federal Constitution. 
They must, therefore, determine whether either of the special 
cases exist, obHging them to relinquish the execution of this 
trust, and to render themselves and the militia subject to the 
command of the President. A different construction, giving to 
Congress the right to determine when these special cases exist, 

^ Senate Documents, 13 Cong., 3 Sess., Report of the Committee on 
Military Affairs, February 28, 181 5, 38-42. 



270 NATIONAL SOVEREIGNTY 

authorizing them to call forth the whole of the militia, and 
taking them from the Commanders-in-Chief of the several 
states, and subjecting them to the command of the President, 
would place all the militia, in effect, at the will of Congress, 
and produce a military consolidation of the states, without any 
constitutional remedy against the intentions of the people, 
when ratifying the Constitution. Indeed, since passing the 
act of Congress of February 28, 1795, chapter loi, vesting in 
the President the power of calling forth the militia when the 
exigencies mentioned in the Constitution shall exist, if the 
President has the power of determining when those exigencies 
exist, the militia in the several states is, in effect, at his com- 
mand, and subject to his control. 

No inconvenience can reasonably be presumed to result from 
the construction which vests in the Commanders-in-Chief of 
the militia, in the several states, the right of determining when 
the exigencies exist, obliging them to place the mihtia in the 
service of the United States. These exigencies are of such a 
nature, that the existence of them can be easily ascertained 
by, or made known to, the Commanders-in-Chief of the militia; 
and when ascertained, the public interest will produce prompt 
obedience to the acts of Congress. 

Another question proposed to the consideration of the 
judges, is, whether, when either of the exigencies exist, author- 
izing the employing of the mihtia in the service of the United 
States, the mihtia thus employed can be lawfully commanded 
by any officer not of the militia, except by the President of the 
United States? 

. . . The officers of the miHtia are to be appointed by the 
states, and the President may exercise his command of the 
militia by the officers of the militia, duly appointed; but we 
know of no constitutional provision authorizing any ofi&cer of 
the army of the United States to command the militia, or 
authorizing any officer of the miHtia to command the army of 
the United States. The Congress may provide laws for the 
government of the militia when in actual service; but to extend 
this power to placing them under the command of an officer 



NULLIFICATION IN NEW ENGLAND 271 

not of the militia, except the President, would render nugatory 
the provision that the militia are to have officers appointed by 
the states. ... 

86. Martin v. Mott} 

Mr. Justice Story delivered the opinion of the Court : 

... It has not been denied here that the act of 1795 is 
within the constitutional authority of Congress, or that Con- 
gress may not lawfully provide for cases of imminent danger of 
invasion, as well as for cases where an invasion has actually 
taken place. In our opinion there is no ground for a doubt on 
this point, even if it had been relied on, for the power to pro- 
vide for repelling invasions includes the power to provide 
against the attempt and danger of invasion, as the necessary 
and proper means to effectuate the object. One of the best 
means to repel invasion is to provide the requisite force for 
action before the invader himself has reached the soil. 

The power thus confided by Congress to the President, is, 
doubtless of a very high and delicate nature. A free people are 
naturally jealous of the exercise of military power; and the 
power to call the militia into actual service is certainly felt to 
be one of no ordinary magnitude. But it is not a power which 
can be executed without a correspondent responsibility. It is, in 
its terms, a limited power, confined to cases of actual invasion, 
or of imminent danger of invasion. If it be a limited power, 
the question arises, by whom is the exigency to be judged 
of and decided? Is the President the sole and exclusive judge 
whether the exigency has arisen, or is it to be considered as an 
open question, upon which every officer to whom the orders o^ 
the President are addressed, may decide for himself, and 
equally open to be contested by every militia-man who shall 
refuse to obey the orders of the President? We are all of the 
opinion that the authority to decide whether the exigency has 
arisen belongs exclusively to the President, and that his de- 
cision is conclusive upon all other persons. We think that this 
construction necessarily results from the nature of the power 
^ Supreme Court of the United States, 1827. 12 Wheaton, 19. 



272 NATIONAL SOVEREIGNTY 

itself, and from the manifest object contemplated by the act 
of Congress. The power itself is to be exercised upon sudden 
emergencies, upon great occasions of state, and under circum- 
stances which may be vital to the existence of the Union. A 
prompt and unhesitating obedience to orders is indispensable 
to the complete attainment of the object. The service is a mili- 
tary service, and the command of a military nature ; and in such 
cases, every delay, and every obstacle to an efficient and im- 
mediate compliance, necessarily tend to jeopard the public in- 
terests. While subordinate officers or soldiers are pausing 
to consider whether they ought to obey, or are scrupulously 
weighing the evidence of the facts upon which the commander- 
in-chief exercises the right to demand their services, the hostile 
enterprise may be accomplished without the means of resist- 
ance. If " the power of regulating the militia, and of command- 
ing its services in times of insurrection and invasion, are (as it 
has been emphatically said they are) natural incidents to the 
duties of superintending the common defense, and of watching 
over the internal peace of the confederacy," these powers must 
be so construed as to the modes of their exercise as not to defeat 
the great end in view. If a superior officer has a right to con- 
test the orders of the President upon his own doubts as to the 
exigency having arisen, it must be equally the right of every 
inferior officer and soldier ; and any act done by any person in 
furtherance of such orders would subject him to responsibility 
in a civil suit, in which his defense must finally rest upon his 
ability to establish the facts by competent proofs. Such a 
course would be subversive of all discipline, and expose the 
best-disposed officers to the chances of ruinous litigation. 
Besides, in many instances, the evidence upon which the 
President might decide that there is imminent danger of inva- 
sion, might be of a nature not constituting strict technical 
proof, or the disclosure of the evidence might reveal important 
secrets of state, which the public interest, and even safety, 
might imperiously demand to be kept in concealment. . . . 



CHAPTER XXX 

THE DOCTRINE OF LIBERAL CONSTRUCTION OF THE 
CONSTITUTION 

The case of M'Culloch v. Maryland came before the Supreme Court on 
writ of error from the Court of Appeals of that Commonwealth. M'Cul- 
loch, cashier of the Baltimore branch of the Bank of the United States, 
had violated a law of Maryland which imposed a tax on all banks not 
chartered by the legislature; and judgment had been rendered against 
him. The plaintiff in error now contested the validity of the act passed 
by the legislature of Maryland, while the defendant, "a sovereign State," 
denied the obligation of the act of Congress which incorporated the 
national bank. In delivering the opinion of the Court, Mr. Chief Justice 
Marshall stated in phraseology which has become classic the doctrine of 
liberal construction of the Constitution. 

87. M'Culloch V. The State of Maryland et al} 

Mr. Chief Justice Marshall delivered the opinion of the Court: 
The first question made in the cause is, has Congress power 
to incorporate a bank? . . . 

If any one proposition could command the universal assent 
of mankind, we might expect that it would be this: that the 
government of the Union, though limited in its powers, is 
supreme within its sphere of action. This would seem to result 
necessarily from its nature. It is the government of all; its 
powers are delegated by all; it represents all, and acts for all. 
Though any one State may be willing to control its operations, 
no State is willing to allow others to control them. The nation, 
on those subjects on which it can act, must necessarily bind its 
component parts. . . . 

Among the enumerated powers, we do not find that of estab- 
lishing a bank or creating a corporation. But there is no 
phrase in the instrument which, like the articles of confedera- 
tion, excludes incidental or implied powers ; and which requires 
that everything granted shall be expressly and minutely 
^ Supreme Court of the United States, 1819. 4 Wheaton, 316. 



274 NATIONAL SOVEREIGNTY 

described. Even the loth amendment, which was framed for 
the purpose of quieting the excessive jealousies which had been 
excited, omitS' the word "expressly," and declares only that 
the powers "not delegated to the United States, nor prohibited 
to the States, are reserved to the States or to the people; " thus 
leaving the question, whether the particular power which may 
become the subject of contest, has been delegated to the one 
government, or prohibited to the other, to depend on a fair 
construction of the whole instrument. The men who drew and 
adopted this amendment, had experienced the embarrassments 
resulting from the insertion of this word in the articles of con- 
federation, and probably omitted it to avoid those embarrass- 
ments. A constitution, to contain an accurate detail of all the 
subdivisions of which its great powers will admit, and of all 
the means by which they may be carried into execution, would 
partake of the prolixity of a legal code, and could scarcely be 
embraced by the human mind. It would probably never be 
understood by the public. Its nature, therefore, requires, that 
only its great outlines should be marked, its important objects 
designated, and the minor ingredients which compose those 
objects be deduced from the nature of the objects themselves. 
That this idea was entertained by the framers of the American 
constitution, is not only to be inferred from the nature of the 
instrument, but from the language. Why else were some of the 
limitations, found in the 9th section of the ist article, intro- 
duced? It is also, in some degree, warranted by their having 
omitted to use any restrictive term which might prevent its 
receiving a fair and just interpretation. In considering this 
question, then, we must never forget, that it is a constitution 
we are expounding. 

Although, among the enumerated powers of government, we 
do not find the word "bank," or "incorporation," we find the 
great powers to lay and collect taxes; to borrow money; to 
regulate commerce; to declare and conduct war; and to raise 
and support armies and navies. The sword and the purse, all 
the external relations, and no inconsiderable portion of the 
industry of the nation, are intrusted to its government. It can 



DOCTRINE OF LIBERAL CONSTRUCTION 275 

never be pretended that these vast powers draw after them 
others of inferior importance, merely because they are inferior. 
Such an idea can never be advanced. But it may, with great 
reason, be contended, that a government, intrusted with such 
ample powers, on the due execution of which the happiness and 
prosperity of the nation so vitally depends, must also be in- 
trusted with ample means for their execution. The power being 
given, it is the interest of the nation to facilitate its execution. 
It can never be their interest, and cannot be presumed to have 
been their intention, to clog and embarrass its execution by 
withholding the most appropriate means. Throughout this vast 
republic, from the St. Croix to the Gulf of Mexico, from the At- 
lantic to the Pacific, revenue is to be collected and expended, 
armies are to be marched and supported. The exigencies of ^the 
nation may require, that the treasure raised in the North should 
be transported to the South, that raised in the East conveyed to 
the West, or that this order should be reversed. Is that con- 
struction of the constitution to be preferred which would ren- 
der these operations difficult, hazardous, and expensive? Can 
we adopt that construction (unless the words imperiously 
require it) which would impute to the framers of that instru- 
ment, when granting these powers for the pubHc good, the 
intention of impeding their exercise by withholding a choice of 
means? If, indeed, such be the mandate of the constitution, 
we have only to obey; but that instrument does not profess 
to enumerate the means by which the powers it confers may 
be executed; nor does it prohibit the creation of a corporation, 
if the existence of such a being be essential to the beneficial 
exercise of those powers. It is, then^, the subject of fair inquiry, 
how far such means may be employed. . , . 

The power of creating a corporation, though appertaining 
to sovereignty, is not, like the power of making war, or levying 
taxes, or of regulating commerce, a great substantive and inde- 
pendent power, which cannot be implied as incidental to other 
powers, or used as a means of executing them. It is never the 
end for which other powers are exercised, but a means by which 
other objects are accomplished. . . . No sufficient reason is, 



276 NATIONAL SOVEREIGNTY 

therefore, perceived, why it may not pass as incidental to those 
powers which are expressly given, if it be a direct mode of 
executing them. 

But the constitution of the United States has not left the 
right of Congress to employ the necessary means, for the execu- 
tion of the powers conferred on the government, to general 
reasoning. To its enumeration of powers is added that of mak- 
ing "all laws which shall be necessary and proper, for carrying 
into execution the foregoing powers, and all other powers vested 
by this constitution, in the government of the United States, 
or in any department thereof." 

The counsel for the State of Maryland have urged various 
arguments, to prove that this clause, though in terms a grant 
of power, is not so in effect; but is really restrictive of the 
general right, which might otherwise be impKed, of selecting 
means for executing the enumerated powers. . . . 

But the argument on which most reliance is placed, is drawn 
from the peculiar language of this clause. Congress is not em- 
powered by it to make all laws, which may have relation to the 
powers conferred on the government, but only such as may be 
"necessary and proper " for carrying them into execution. The 
word "necessary" is considered as controUing the whole sen- 
tence, and as limiting the right to pass laws for the execution 
of the granted powers, to such as are indispensable, and with- 
out which the power would be nugatory. That it excludes the 
choice of means, and leaves to Congress, in each case, that only 
which is most direct and simple. 

Is it true, that this is the sense in which the word "neces- 
sary" is always used? Does it always import an absolute 
physical necessity, so strong, that one thing, to which another 
may be termed necessary, cannot exist without that other? We 
think it does not. If reference be had to its use, in the common 
affairs of the world, or in approved authors, we find that it 
frequently imports no more than that one thing is convenient, 
or useful, or essential to another. To employ the means neces- 
sary to an end, is generally understood as employing any means 
calculated to produce the end, and not as being confined to 



DOCTRINE OF LIBERAL CONSTRUCTION 277 

those single means, without which the end would be entirely 
unattainable. Such is the character of human language, that 
no word conveys to the mind, in all situations, one single 
definite idea; and nothing is more common than to use words 
in a figurative sense. Almost all compositions contain words, 
which, taken in their rigorous sense, would convey a meaning 
different from that which is obviously intended. It is essential 
to just construction, that many words which import something 
excessive, should be understood in a more mitigated sense — 
in that sense which common usage justifies. The word "neces- 
sary" is of this description. It has not a fixed character pecu- 
liar to itself. It admits of all degrees of comparison; and is 
often connected with words, which increase or diminish the 
impression the mind receives of the urgency it imports. A 
thing may be necessary, very necessary, absolutely or indis- 
pensably necessary. To no mind would the same idea be con- 
veyed, by these several phrases. This comment on the word is 
well illustrated, by the passage cited at the bar, from the loth 
section of the ist article of the constitution. It is, we think, 
impossible to compare the sentence which prohibits a State 
from laying ''imposts, or duties on imports or exports, except 
what may be absolutely necessary for executing its inspection 
laws," with that which authorizes Congress ''to make all laws 
which shall be necessary and proper for carrying into execu- 
tion" the powers of the general government, without feehng a 
conviction that the convention understood itself to change 
materially the meaning of the word "necessary" by prefixing 
the word "absolutely." This word, then, hke others, is used 
in various senses; and, in its construction, the subject, the con- 
text, the intention of the person using them, are all to be taken 
into view. 

Let this be done in the case under consideration. The sub- 
ject is the execution of those great powers on which the welfare 
of a nation essentially depends. It must have been the inten- 
tion of those who gave these powers, to insure as far as human 
prudence could insure, their beneficial execution. This could 
not be done by confining the choice of means to such narrow 



278 NATIONAL SOVEREIGNTY 

limits as not to leave it in the power of Congress to adopt any 
which might be appropriate, and which were conducive to the 
end. This provision is made in a constitution intended to 
endure for ages to come, and, consequently, to be adapted to 
the various crises of human affairs. To have prescribed the 
means by which government should, in all future time, execute 
its powers, would have been to change, entirely, the character 
of the instrument, and give it the properties of a legal code. 
It would have been an unwise attempt to provide, by immut- 
able rules, for exigencies which, if foreseen at all, must have 
been seen dimly, and which can be best provided for as they 
occur. To have declared that the best means shall not be used, 
but those alone without which the power given would be nuga- 
tory, would have been to deprive the legislature of the capacity 
to avail itself of experience, to exercise its reason, and to accom- 
modate its legislation to circumstances. . . . 

. . . This clause, as construed by the State of Maryland, 
would abridge and almost annihilate this useful and necessary 
right of the legislature to select its means. That this could not 
be intended, is, we should think, had it not been already con- 
troverted, too apparent for controversy. We think so for the 
following reasons : — 

1 . The clause is placed among the powers of Congress, not 
among the limitations on those powers. 

2. Its terms purport to enlarge, not to diminish the powers 
vested in the government. It purports to be an additional 
power, not a restriction on those already granted. No reason 
has been or can be assigned, for thus concealing an intention 
to narrow the discretion of the national legislature, under 
words which purport to enlarge it. The framers of the consti- 
tution wished its adoption, and well knew that it would be 
endangered by its strength, not by its weakness. Had they 
been capable of using language which would convey to the eye 
one idea, and after deep reflection, impress on the mind an- 
other, they would rather have disguised the grant of power, 
than its limitation. If then, their intention had been, by this 
clause, to restrain the free use of means which might otherwise 



DOCTRINE OF LIBERAL CONSTRUCTION 279 

have been implied, that intention would have been inserted in 
another place, and would have been expressed in terms resem- 
bling these: "In carrying into execution the foregoing powers, 
and all others," &c., "no laws shall be passed but such as are 
necessary and proper." Had the intention been to make this 
clause restrictive, it would unquestionably have been so in form 
as well as in effect. 

The result of the most careful and attentive consideration 
bestowed upon this clause is, that if it does not enlarge, it 
cannot be construed to restrain the powers of Congress, or to 
impair the right of the legislature to exercise its best judgment 
in the selection of measures, to carry into execution the consti- 
tutional powers of the government. If no other motive for its 
insertion can be suggested, a sufficient one is found in the desire 
to remove all doubts respecting the right to legislate on that 
vast mass of incidental powers which must be involved in the 
constitution, if that instrument be not a splendid bauble. 

We admit, as all must admit, that the powers of the govern- 
ment are hmited, and that its Hmits are not to be transcended. 
But we think the sound construction of the constitution must j 
allow to the national legislature that discretion, with respect | 
to the means by which the powers it confers are to be carried 
into execution, which will enable that body to perform the high 
duties assigned to it, in the manner most beneficial to the peo- j 
pie. Let the end be legitimate, let it be within the scope of the' 
constitution, and all means which are appropriate, which are. 
plainly adapted to that end, which are not prohibited, but con- 1 
sist with the letter and spirit of the constitution, are constitu- 
tional. . . . 

After the most dehberate consideration, it is the unanimous 
and decided opinion of this court, that the act to incorporate 
the Bank of the United States is a law made in pursuance of the 
constitution, and is a part of the supreme law of the land. . . . 

It being the opinion of the court that the act incorporating 
the bank is constitutional; and that the power of establishing 
a branch in the State of Maryland might be properly exercised 
by the bank itself, we proceed to inquire: — 



28o NATIONAL SOVEREIGNTY 

2. Whether the State of Maryland may, without violating 
the constitution, tax that branch? 

. That the power of taxation is one of vital importance; that 
it is retained by the States; that it is not abridged by the grant 
of a similar power to the government of the Union ; that it is to 
be concurrently exercised by the two governments: are truths 
which have never been denied. But, such is the paramount 
character of the constitution, that its capacity to withdraw 
any subject from the action of even this power, is admitted. 
The States are expressly forbidden to lay any duties on imports 
or exports, except what may be absolutely necessary for exe- 
cuting their inspection laws. If the obligation of this prohibi- 
tion must be conceded — if it may restrain a State from the 
exercise of its taxing power on imports and exports ; the same 
paramount character would seem to restrain, as it certainly 
may restrain, a State from such other exercise of this power, 
as is in its nature incompatible with, and repugnant to, the 
constitutional laws of the Union. A law, absolutely repugnant 
to another, as entirely repeals that other as if express terms of 
repeal were used. 

On this ground the counsel for the bank place its claim to be 
exempted from the power of a State to tax its operations. 
There is no express provision for the case, but the claim has 
been sustained on a principle which so entirely pervades the 
constitution, is so intermixed with the materials which com- 
pose it, so interwoven with its web, so blended with its texture, 
as to be incapable of being separated from it, without rending 
it into shreds. 

This great principle is, that the constitution and the laws 
made in pursuance thereof are supreme; that they control the 
constitution and laws of the respective States, and cannot be 
controlled by them. From this, which may be almost termed 
an axiom, other propositions are deduced as corollaries, on the 
truth or error of which, and on their application to this case, 
the cause has been supposed to depend. These are, i. That a 
power to create implies a power to preserve. 2. That a power 
to destroy, if wielded by a different hand, is hostile to, and in- 



DOCTRINE OF LIBERAL CONSTRUCTION 281 

compatible with, these powers to create and preserve. 3. That 
where this repugnancy exists, that authority which is supreme 
must control, not yield to that over which it is supreme. . . . 

The power of Congress to create, and of course to continue, 
the bank, was the subject of the preceding part of this opinion; 
and is no longer to be considered as questionable. . . . 

That the power to tax involves the power to destroy; that 
the power to destroy may defeat and render useless the power 
to create ; that there is a plain repugnance, in conferring on one 
government a power to control the constitutional measures of 
another, which other, with respect to those very measures, is 
declared to be supreme over that which exerts the control, are 
propositions not to be denied. But all inconsistencies are to be 
reconciled by the magic of the word confidence. Taxation, it is 
said, does not necessarily and unavoidably destroy. To carry 
it to the excess of destruction would be an abuse, to presume 
which, would banish that confidence which is essential to all 
government. . . . 

If we apply the principle for which the State of Maryland 
contends, to the constitution generally, we shall find it capable 
of changing totally the character of that instrument. We shall 
find it capable of arresting all the measures of the government, 
and of prostrating it at the foot of the States. The American 
people have declared their constitution, and the laws made in 
pursuance thereof, to be supreme; but this principle would 
transfer the supremacy, in fact, to the State. . . . 

The court has bestowed on this subject its most deliberate 
consideration. The result is a conviction that the States have 
no power, by taxation or otherwise, to retard, impede, burden, 
or in any manner control, the operations of the constitutional 
laws enacted by Congress to carry into execution the powers 
vested in the general government. This is, we think, the una- 
voidable consequence of that supremacy which the constitution 
has declared. 

We are unanimously of opinion, that the law passed by the 
legislature of Maryland, imposing a tax on the Bank of the 
United States, is unconstitutional and void. . . . 



CHAPTER XXXI 

JURISDICTION OF THE SUPREME COURT OVER STATE 

COURTS 

In two notable cases, Martin v. Hunter's Lessee, and Cohens v. Virginia, 
the Supreme Court of the United States asserted the right to review and 
reverse decisions of the State courts when those decisions were adverse to 
alleged federal rights. In both cases the twenty-fifth section of the Judi- 
ciary Act of 1789 was under fire. In the case of Cohens v. Virginia, the 
counsel for the Commonwealth said: "The appellate jurisdiction conferred 
by the Constitution on the Supreme Court is merely authority to revise 
the decisions of the inferior courts of the United States. . . . Appellate 
jurisdiction signifies judicial power over the decisions of inferior tribunals 
of the same sovereignty. . . . Congress is not authorized to make the 
supreme court or any other court of a State an inferior court. . . . The 
inferior courts spoken of in the Constitution are manifestly to be held 
by federal judges. The judicial power to be exercised is the judicial 
power of the United States; the errors to be corrected are those of 
that judicial power; and there can be no inferior courts exercising the 
judicial power of the United States other than those constituted and 
ordained by Congress." These contentions are fully met in the following 
selection from the opinion of the Court in the case of Cohens v. Virginia, 

88. Martin, Heir at Law and Devisee of Fairfax, v. Hunter's 

Lessee} 

Mr. Justice Story delivered the opinion of the Court: 

This is a v^rit of error from the court of appeals of Virginia, 
founded upon the refusal of that court to obey the mandate 
of this court, requiring the judgment rendered in this very 
cause, at February term, 18 13, to be carried into due execution. 
The following is the judgment of the court of appeals rendered 
on the mandate: "The court is unanimously of opinion, that 
the appellate power of the supreme court of the United States 
does not extend to this court, under a sound construction of the 
constitution of the United States; that so much of the 25th 
section of the act of Congress to estabhsh the judicial courts of 
the United States, as extends the appellate jurisdiction of the 
1 Supreme Court of the United States, 1816. i Wheaton, 304. 



JURISDICTION OF SUPREME COURT 283 

supreme court to this court, is not in pursuance of the constitu- 
tion of the United States; that the writ of error in this cause 
was improvidently allowed under the authority of that act; 
that the proceedings thereon in the supreme court were coram 
non judice, in relation to this court, and that obedience to its 
mandate be declined by the court." . . . 

The third article of the constitution is that which must prin- 
cipally attract our attention. . . . 

This leads us to the consideration of the great question as to 
the nature and extent of the appellate jurisdiction of the 
United States. We have already seen that appellate jurisdic- 
tion is given by the constitution to the supreme court in all 
cases where it has not original jurisdiction, subject, however, 
to such exceptions and regulations as Congress may prescribe. 
It is, therefore, capable of embracing every case enumerated 
in the constitution, which is not exclusively to be decided by 
way of original jurisdiction. But the exercise of appellate 
jurisdiction is far from being limited by the terms of the consti- 
tution to the supreme court. There can be no doubt that Con- 
gress may create a succession of inferior tribunals, in each of 
which it may vest appellate as well as original jurisdiction. 
The judicial power is delegated by the constitution in the most 
general terms, and may, therefore, be exercised by Congress 
under every variety of form, of appellate or original jurisdic- 
tion. And as there is nothing in the constitution which restrains 
or limits this power, it must, therefore, in all other cases, sub- 
sist in the utmost latitude of which, in its own nature, it is 
susceptible. 

As, then, by the terms of the constitution, the appellate 
jurisdiction is not limited as to the supreme court, and as to 
this court it may be exercised in all other cases than those of 
which it has original cognizance, what is there to restrain its 
exercise over state tribunals in the enumerated cases? The 
appellate power is not limited by the terms of the third article 
to any particular courts. The words are, "the judicial power 
(which includes appellate power) shall extend to all cases," 
&c., and "in all other cases before mentioned the supreme 



284 NATIONAL SOVEREIGNTY 

court shall have appellate jurisdiction." It is the case, then, 
and not the court, that gives the jurisdiction. If the judicial 
power extends to the case, it will be in vain to search in the 
letter of the constitution for any qualifications as to the 
tribunal where it depends. It is incumbent, then, upon those 
who assert such a qualification to show its existence by neces- 
sary implication. If the text be clear and distinct, no restric- 
tion upon its plain and obvious import ought to be admitted, 
unless the inference be irresistible. 

If the constitution meant to limit the appellate jurisdiction 
to cases pending in the courts of the United States, it would 
necessarily follow that the jurisdiction of these courts would, 
in all the cases enumerated in the constitution, be exclusive of 
state tribunals. How otherwise could the jurisdiction extend 
to all cases arising under the constitution, laws, and treaties of 
the United States, or to all cases of admiralty and maritime 
jurisdiction? If some of these cases might be entertained by 
state tribunals, and no appellate jurisdiction as to them should 
exist, then the appellate power would not extend to all, but to 
some, cases. If state tribunals might exercise concurrent juris- 
diction over all or some of the other classes of cases in the con- 
stitution without control, then the appellate jurisdiction of the 
United States, might, as to such cases, have no real existence, 
contrary to the manifest intent of the constitution. Under such 
circumstances, to give effect to the judicial power, it must be 
construed to be exclusive; and this not only when the casus 
foederis should arise directly, but when it should arise, incident- 
ally, in cases pending in state courts. This construction would 
abridge the jurisdiction of such court far more than has been 
ever contemplated in any act of Congress. 

On the other hand, if, as has been contended, a discretion be 
vested in Congress to establish, or not to establish, inferior 
courts at their own pleasure, and Congress should not establish 
such courts, the appellate jurisdiction of the supreme court 
would have nothing to act upon, unless it could act upon cases 
pending in the state courts. Under such circumstances, it must 
be held that the appellate power would extend to state courts; 



JURISDICTION OF SUPREME COURT 285 

for the constitution is peremptory that it shall extend to certain 
enumerated cases, which cases could exist in no other courts. 
Any other construction, upon this supposition, would involve 
this strange contradiction, that a discretionary power vested 
in Congress, and which they might rightfully omit to exercise, 
would defeat the absolute injunctions of the constitution in 
relation to the whole appellate power. 

But it is plain that the framers of the constitution did con- 
template that cases within the judicial cognizance of the 
United States not only might but would arise in the state 
courts, in the exercise of their ordinary jurisdiction. With this 
view the sixth article declares, that "this constitution, and the 
laws of the United States which shall be made in pursuance 
thereof, and all treaties made, or which shall be made, under 
the authority of the United States, shall be the supreme law of 
the land, and the judges in every State shall be bound thereby, 
anything in the constitution, or laws of any State to the con- 
trary notwithstanding." It is obvious that this obligation is 
imperative upon the state judges in their official, and not 
merely in their private, capacities. From the very nature of 
their judicial duties they would be called upon to pronounce 
the law applicable to the case in judgment. They were not 
to decide merely according to the laws or constitution of the 
State, but according to the constitution, laws, and treaties of 
the United States, "the supreme law of the land." 

A moment's consideration will show us the necessity and pro- 
priety, of this provision in cases where the jurisdiction of the 
state courts is unquestionable. Suppose a contract for the 
payment of money is made between citizens of the same State, 
and performance thereof is sought in the courts of that State; 
no person can doubt that the jurisdiction completely and exclu- 
sively attaches, in the first instance, to such courts. Suppose, 
at the trial, the defendant sets up in his defense a tender under 
a state law, making paper money a good tender, or a state law, 
impairing the obligation of such contract, which law, if bind- 
ing, would defeat the suit. The constitution of the United 
States has declared that no State shall make anything but gold 



286 NATIONAL SOVEREIGNTY 

or silver coin a tender in payment of debts, or pass a law impair- 
ing the obligation of contracts. If Congress shall not have 
passed a law providing for the removal of such a suit to the 
courts of the United States, must not the state court proceed 
to hear and determine it? Can a mere plea in defense be of itself 
a bar to further proceedings, so as to prohibit an inquiry into 
its truth or legal propriety, when no other tribunal exists to 
whom judicial cognizance of such cases is confided? Suppose 
an indictment for a crime in a state court, and the defendant 
should allege in his defense that the crime was created by an 
ex post facto act of the State, must not the state court, in the 
exercise of a jurisdiction which has already rightfully attached, 
have a right to pronounce on the vahdity and sufficiency of the 
defense? It would be extremely difficult, upon any legal prin- 
ciples, to give a negative answer to these inquiries. Innumer- 
able instances of the same sort might be stated in illustration 
of the position; and unless the state courts could sustain juris- 
diction in such cases, this clause of the sixth article would be 
without meaning or effect, and public mischiefs, of a most 
enormous magnitude, would inevitably ensue. 

It must, therefore, be conceded that the constitution not 
only contemplated, but meant to provide for cases within the 
scope of the judicial power of the United States, which might 
yet depend before state tribunals. It was foreseen that in the 
exercise of their ordinary jurisdiction, state courts would 
incidentally take cognizance of cases arising under the consti- 
tution, the laws, and treaties of the United States. Yet to all 
these cases the judicial power, by the very terms of the constitu- 
tion, is to extend. It cannot extend by original jurisdiction if 
that was already rightfully and exclusively attached in the 
state courts, which (as has been already shown) may occur; 
it must therefore extend by appellate jurisdiction, or not at all. 
It would seem to follow that the appellate power of the United 
States must, in such cases, extend to state tribunals; and if in 
such cases, there is no reason why it should not equally attach 
upon all others within the purview of the constitution. . . . 

On the whole, the court are of opinion, that the appellate 



JURISDICTION OF SUPREME COURT 287 

power of the United States does extend to cases pending in the 
state courts; and that the 25th section of the Judiciary Act, 
which authorizes the exercise of this jurisdiction in the specified 
cases, by a writ of error, is supported by the letter and spirit 
of the constitution. We find no clause in that instrument 
which limits this power ; and we dare not interpose a limitation 
where the people have not been disposed to create one. . . . 

It is the opinion of the whole court, that the judgment of the 
court of appeals of Virginia, rendered on the mandate in this 
cause, be reversed, and the judgment of the district court, 
held at Winchester, be, and the same is hereby affirmed. 

89. Cohens v. The State of Virginia} 

Mr. Chief Justice Marshall delivered the opinion of the Court : 
. . . The American States, as well as the American people, 
have believed a close and firm Union to be essential to their 
liberty and to their happiness. They have been taught by 
experience, that this Union cannot exist without a government 
for the whole ; and they have been taught by the same experience 
that this government would be a mere shadow, that must dis- 
appoint all their hopes, unless invested with large portions of 
that sovereignty which belongs to independent States. Under 
the influence of this opinion, and thus instructed by experience, 
the American people, in the conventions of their respective 
States, adopted the present constitution. 

If it could be doubted whether, from its nature, it were not 
supreme in all cases where it is empowered to act, that doubt 
would be removed by the declaration that "this constitution, 
and the laws of the United States which shall be made in pur- 
suance thereof, and all treaties made, or which shall be made, 
under the authority of the United States, shall be the supreme 
law of the land; and the judges in every State shall be bound 
thereby, anything in the constitution or laws of any State to the 
contrary notwithstanding." 

This is the authoritative language of the American people; 
and, if gentlemen please, of the American States. It marks 
^ Supreme Court of the United States, 1821. 6 Wheaton, 264. 



288 NATIONAL SOVEREIGNTY 

with lines too strong to be mistaken, the characteristic distinc- 
tion between the government of the Union and those of the 
States. The general government, though limited as to its 
objects, is supreme with respect to those objects. This prin- 
ciple is a part of the constitution; and if there be any who deny 
its necessity, none can deny its authority. 

To this supreme government ample powers are confided; and 
if it were possible to doubt the great purposes for which they 
were so confided, the people of the United States have declared 
that they are given ''in order to form a more perfect union, 
establish justice, insure domestic tranquihty, provide for the 
common defense, promote the general welfare, and secure the 
blessings of liberty to themselves and their posterity." 

With the ample powers confided to this supreme govern- 
ment, for these interesting purposes, are connected many ex- 
press and important limitations on the sovereignty of the 
States, which are made for the same purposes. The powers of 
the Union on the great subjects of war, peace, and commerce, 
and on many others, are in themselves limitations of the sover- 
eignty of the States; but in addition to these, the sovereignty 
of the States is surrendered in many instances where the sur- 
render can only operate to the benefit of the people, and where, 
perhaps, no other power is conferred on Congress than a con- 
servative power to maintain the principles established in the 
constitution. The maintenance of these principles in their 
purity is certainly among the great duties of the government. 
One of the instruments by which this duty may be peaceably 
performed is the judicial department. It is authorized to decide 
all cases, of every description, arising under the constitution 
or laws of the United States. From this general grant of juris- 
diction, no exception is made of those cases in which a State 
may be a party. When we consider the situation of the govern- 
ment of the Union and of a State, in relation to each other ; the 
nature of our constitution, the subordination of the state 
governments to the constitution; the great purpose for which 
jurisdiction over all cases arising under the constitution and 
Iclws of the United States, is confided to the judicial depart- 



JURISDICTION OF SUPREME COURT 289 

ment, are we at liberty to insert in this general grant, an excep- 
tion of those cases in which a State may be a party? Will the 
spirit of the constitution justify this attempt to control its 
words? We think it will not. We think a case arising under 
the constitution or laws of the United States, is cognizable in 
the courts of the Union, whoever may be the parties to that 
case. ... 

The second objection to the jurisdiction of the court is, that 
its appellate power cannot be exercised, in any case, over the 
judgment of a state court. 

This objection is sustained chiefly by arguments drawn from 
the supposed total separation of the judiciary of a State from 
that of the Union, and their entire independence of each other. 
The argument considers the federal judiciary as completely 
foreign to that of a State ; and as being no more connected with 
it, in any respect whatever, than the court of a foreign State. 
If this hypothesis be just, the argument founded on it is 
equally so; but if the hypothesis be not supported by the 
constitution, the argument fails with it. 

This hypothesis is not founded on any words in the consti- 
tution, which might seem to countenance it, but on the unrea- 
sonableness of giving a contrary construction to words which 
seem to require it; and on the incompatibility of the applica- 
tion of the appellate jurisdiction to the judgments of state 
courts, with that constitutional relation which subsists between 
the government of the Union and the governments of those 
States which compose it. 

Let this unreasonableness, this total incompatibility, be 
examined. 

That the United States form, for many, and for most import- 
ant purposes, a single nation, has not yet been denied. In war, 
we are one people. In making peace, we are one people. In all 
commercial regulations, we are one and the same people. In 
many other respects, the American people are one; and the 
government which is alone capable of controlling and manag- 
ing their interests, in all these respects, is the government of 
the Union. It is their government, and in that character they 



290 NATIONAL SOVEREIGNTY 

have no other. America has chosen to be, in many respects, 
and to many purposes, a nation ; and for all these purposes her 
government is complete; to all these objects, it is competent. 
The people have declared, that in the exercise of all powers 
given for these objects, it is supreme. It can, then, in effecting 
these objects, legitimately control all individuals or govern- 
ments within the American territory. The constitution and 
laws of a State, so far as they are repugnant to the constitution 
and laws of the United States, are absolutely void. These 
States are constituent parts of the United States. They are 
members of one great empire, — for some purposes sovereign, 
for som.e purposes subordinate. 

In a government so constituted, is it unreasonable that the 
judicial power should be competent to give efhcacy to the con- 
stitutional laws of the legislature? That department can decide 
on the validity of the constitution or law of a State, if it be 
repugnant to the constitution or to a law of the United States. 
Is it unreasonable that it should also be empowered to decide 
on the judgment of a state tribunal enforcing such unconstitu- 
tional law? Is it so very unreasonable as to furnish a justifica- 
tion for controlling the words of the constitution? 

We think it is not. We think that in a government acknow- 
ledgedly supreme, with respect to objects of vital interest to the 
nation, there is nothing inconsistent with sound reason, nothing 
incompatible with the nature of government, in making all its 
departments supreme, so far as respects those objects, and so 
far as is necessary to their attainment. The exercise of the 
appellate power over those judgments of the state tribunals 
which may contravene the constitution or laws of the United 
States, is, we believe, essential to the attainment of those 
objects. . . . 



CHAPTER XXXII 

CONSTRUCTIVE JUDICIAL INTERPRETATION OF THE 
CONSTITUTION 

American judges have never admitted that they make law: they only 
find the law and interpret it. The courts aim to ascertain the purposes of 
the framers of laws and constitutions. Nevertheless, cases arise when 
the constitution and laws must be applied to conditions which the law- 
makers could not have foreseen. The Supreme Court has been called upon, 
repeatedly to decide what the Fathers would have purposed if they could 
have foreseen changed conditions. The interpretation of the commerce 
clause by the Supreme Court, in the case of Gibbons v. Ogden, illustrates 
this interesting process. 

90. Gibbons v. Ogden} 

Mr. Chief Justice Marshall delivered the opinion of the Court: 
The appellant contends that this decree is erroneous, because 
the laws which purport to give the exclusive privilege it sus- 
tains are repugnant to the constitution and laws of the United 
States. 
They are said to be repugnant, — 

1 . To that clause in the constitution which authorizes Con- 
gress to regulate commerce. 

2 . To that which authorizes Congress to promote the progress 
of science and useful arts. . . . 

The words are: " Congress shall have power to regulate com- 
merce with foreign nations, and among the several States, and 
with the Indian tribes.'* The subject to be regulated is com- 
merce; and our constitution being, as was aptly said at the 
bar, one of enumeration, and not of definition, to ascertain the 
extent of the power, it becomes necessary to settle the meaning 
of the word. The counsel for the appellee would limit it to 
traffic, to buying and selling, or the interchange of commodi- 
ties, and do not admit that it com.prehends navigation. This 
would restrict a general term, applicable to many objects, to 
^ Supreme Court of the United States, 1824. 9 Wheaton, i. 



292 NATIONAL SOVEREIGNTY 

one of its significations. Commerce, undoubtedly, is traffic, 
but it is something more, — it is intercourse. It describes the 
commercial intercourse between nations, and parts of nations, 
in all its branches, and is regulated by prescribing rules for 
carrying on that intercourse. The mind can scarcely conceive 
a system for regulating commerce between nations which shall 
exclude all laws concerning navigation, which shall be silent 
on the admission of the vessels of the one nation into the ports 
of the other, and be confined to prescribing rules for the con- 
duct of individuals, in the actual employment of buying and 
selling, or of barter. 

If commerce does not include navigation, the government 
of the Union has no direct power over that subject, and can 
make no law prescribing what shall constitute American ves- 
sels, or requiring that they shall be navigated by American 
seamen. Yet this power has been exercised from the commence- 
ment of the government, has been exercised with the consent 
of all, and has been understood by all to be a commercial regu- 
lation. All America understands, and has uniformly under- 
stood, the word "commerce" to comprehend navigation. It 
was so understood, and must have been so understood, when 
the constitution was framed. The power over commerce, 
including navigation, was one of the primary objects for which 
the people of America adopted their government, and must 
have been contemplated in forming it. The convention must 
have used the word in that sense, because all have understood 
it in that sense; and the attempt to restrict it comes too late. 

If the opinion that "commerce," as the word is used in the 
constitution, comprehends navigation also, requires any addi- 
tional confirmation, that additional confirmation is, we think, 
furnished by the words of the instrument itself. It is a rule of 
construction acknowledged by all, that the exceptions from a 
power mark its extent; for it would be absurd, as well as useless, 
to except from a granted power that which was not granted, — 
that which the words of the grant could not comprehend. If, 
then, there are in the constitution plain exceptions from the 
power over navigation, plain inhibitions to the exercise of that 



INTERPRETATION OF CONSTITUTION 293 

power in a particular way, it is a proof that those who made 
these exceptions, and prescribed these inhibitions, understood 
the power to which they appHed as being granted. 

The 9th section of the ist article declares that "no prefer- 
ence shall be given, by any regulation of commerce or revenue, 
to the ports of one State over those of another." This clause 
cannot be understood as applicable to those laws only which 
are passed for the purposes of revenue, because it is expressly 
applied to commercial regulations; and the most obvious pre- 
ference which can be given to one port over another, in regulat- 
ing commerce, relates to navigation. But the subsequent part 
of the sentence is still more explicit. It is, "nor shall vessels 
bound to or from one State, be obliged to enter, clear, or pay 
duties in another." These words have a direct reference to 
navigation. . . . 

The word used in the constitution, then, comprehends, and 
has been always understood to comprehend, navigation within 
its meaning; and a power to regulate navigation is as expressly 
granted as if that term had been added to the word "com- 
merce." 

To what commerce does this power extend? The constitu- 
tion informs us, to commerce "with foreign nations, and among 
the several States, and with the Indian tribes." It has, we 
believe, been universally admitted that these words compre- 
hend every species of commercial intercourse between the 
United States and foreign nations. No sort of trade can be 
carried on between this country and any other to which this 
power does not extend. It has been truly said that commerce, 
as the word is used in the constitution, is a unit, every part of 
which is indicated by the term. If this be the admitted mean- 
ing of the word, in its application to foreign nations, it must 
carry the same meaning throughout the sentence, and remain 
a unit, unless there be some plain intelHgible cause which 
alters it. 

The subject to which the power is next applied is to com- 
merce " among the several States." The word "among " means 
intermingled with. A thing which is among others is inter- 



294 NATIONAL SOVEREIGNTY 

mingled with them. Commerce among the States cannot stop 
at the external boundary Hne of each State, but may be intro- 
duced into the interior. 

It is not intended to say that these words comprehend that 
commerce which is completely internal, which is carried on 
between man and man in a State, or between different parts 
of the same State, and which does not extend to or affect other 
States. Such a power would be inconvenient and is certainly 
unnecessary. 

Comprehensive as the word "among" is, it may very pro- 
perly be restricted to that commerce which concerns more 
States than one. The phrase is not one which would probably 
have been selected to indicate the completely interior traffic 
of a State, because it is not an apt phrase for that purpose; 
and the enumeration of the particular classes of commerce to 
which the power was to be extended would not have been made 
had the intention been to extend the power to every descrip- 
tion. The enumeration presupposes something not enumer- 
ated; and that something, if we regard the language or the sub- 
ject of the sentence, must be the exclusively internal commerce 
of a State. The genius and character of the whole government 
seem to be, that its action is to be applied to all the external 
concerns of the nation, and to those internal concerns which 
affect the States generally; but not to those which are com- 
pletely within a particular State, which do not affect other 
States, and with which it is not necessary to interfere for the 
purpose of executing some of the general powers of the govern- 
ment. The completely internal commerce of a State, then, may 
be considered as reserved for the State itself. 

But, in regulating commerce with foreign nations, the power 
of Congress does not stop at the jurisdictional lines of the sev- 
eral States. It would be a very useless power if it could not 
pass those lines. The commerce of the United States with 
foreign nations is that of the whole United States. Every 
district has a right to participate in it. The deep streams which 
penetrate our country in every direction pass through the 
interior of almost every State in the Union, and furnish the 



INTERPRETATION OF CONSTITUTION 295 

means of exercising this right. If Congress has the power to 
regulate it, that power must be exercised whenever the subject 
exists. If it exists within the States, if a foreign voyage may 
commence or terminate at a port within a State, then the power 
of Congress may be exercised within a State. 

This principle is, if possible, still more clear when applied to 
commerce "among the several States." They either join each 
other, in which case they are separated by a mathematical line, 
or they are remote from each other, in which case other States 
lie between them. What is commerce "among" them; and how 
is it to be conducted? Can a trading expedition between two 
adjoining States commence and terminate outside of each? 
And if the trading intercourse be between two States remote 
from each other, must it not commence in one, terminate in 
the other, and probably pass through a third? Commerce 
among the States must, of necessity, be commerce with the 
States. In the regulation of trade with the Indian tribes, the 
action of the law, especially when the constitution was made, 
was chiefly within a State. The power of Congress, then, what- 
ever it may be, must be exercised within the territorial juris- 
diction of the several States. . . . 

The power of Congress, then, comprehends navigation within 
the limits of every State in the Union, so far as that navigation 
may be, in any manner, connected with "commerce with for- 
eign nations, or among the several States, or with the Indian 
tribes." It may, of consequence, pass the jurisdictional line of 
New York, and act upon the very waters to which the prohibi- 
tion now under consideration applies. 

But it has been urged with great earnestness that, although 
the power of Congress to regulate commerce with foreign 
nations, and among the several States, be co-extensive with 
the subject itself, and have no other limits than are prescribed 
in the constitution, yet the States may severally exercise the 
same power within their respective jurisdictions. In support 
of this argument, it is said that they possessed it as an insepar- 
able attribute of sovereignty before the formation of the con- 
stitution, and still retain it, except so far as they have sur- 



296 NATIONAL SOVEREIGNTY 

rendered it by that instrument; that this principle results from 
the nature of the government, and is secured by the tenth 
amendment; that an afi&rmative grant of power is not exclu- 
sive, unless in its own nature it be such that the continued 
exercise of it by the former possessor is inconsistent with the 
grant, and that this is not of that description. 

The appellant, conceding these postulates, except the last, 
contends that full power to regulate a particular subject implies 
the whole power, and leaves no residuum ; that a grant of the 
whole is incompatible with the existence of a right in another 
to any part of it. 

Both parties have appealed to the constitution, to legislative 
acts, and judicial decisions; and have drawn arguments from 
all these sources to support and illustrate the propositions they 
respectively maintain. . . . 

The sole question is, can a State regulate commerce with 
foreign nations and among the States while Congress is regu- 
lating it? . . . 

These acts were cited at the bar for the purpose of showing 
an opinion in Congress that the States possess, concurrently 
with the legislature of the Union, the power to regulate com- 
merce with foreign nations and among the States. Upon 
reviewing them, we think they do not establish the proposition 
they were intended to prove. They show the opinion that the 
States retain powers enabling them to pass the laws to which 
allusion has been made, not that those laws proceed from the 
particular power which has been delegated to Congress. 

It has been contended by the counsel for the appellant that, 
as the word to "regulate" implies in its nature full power over 
the thing to be regulated, it excludes, necessarily, the action of 
all others that would perform the same operation on the same 
thing. That regulation is designed for the entire result, apply- 
ing to those parts which remain as they were, as well as to 
those which are altered. It produces a uniform whole, which 
is as much disturbed and deranged by changing what the 
regulating power designs to leave untouched, as that on which 
it has operated. 



INTERPRETATION OF CONSTITUTION 297 

There is great force in this argument, and the court is not 
satisfied that it has been refuted. 

Since, however, in exercising the power of regulating their 
own purely internal affairs, whether of trading or police, the 
States may sometimes enact laws, the validity of which depends 
on their interfering with, and being contrary to, an act of Con- 
gress passed in pursuance of the constitution, the court will 
enter upon the inquiry whether the laws of New York, as 
expounded by the highest tribunal of that State, have, in their 
application to this case, come into collision with an act of 
Congress, and deprived a citizen of a right to which that act 
entitles him. Should this collision exist, it will be immaterial 
whether those laws were passed in virtue of a concurrent power 
"to regulate commerce with foreign nations and among the 
several States," or, in virtue of a power to regulate their domes- 
tic trade and police. In one case and the other, the acts of New 
York must yield to the law of Congress, and the decision sus- 
taining the privilege they confer, against a right given by a law 
of the Union, must be erroneous. . . . 

The questions, then, whether the conveyance of passengers 
be a part of the coasting trade, and whether a vessel can be 
protected in that occupation by a coasting license, are not, and 
cannot be, raised in this case. The real and sole question seems 
to be, whether a steam machine, in actual use, deprives a 
vessel of the privileges conferred by a license. 

In considering this question, the first idea which presents' 
itself, is that the laws of Congress for the regulation of com- 
merce, do not look to the principle by which vessels are moved. 
That subject is left entirely to individual discretion; and in 
that vast and complex system of legislative enactment con- 
cerning it, which embraces everything which the legislature 
thought it necessary to notice, there is not, we believe, one 
word respecting the pecuhar principle by which vessels are 
propelled through the water, except what may be found in a 
single act, granting a particular privilege to steamboats. With 
this exception, every act, either prescribing duties, or granting 
privileges, applies to every vessel, whether navigated by the in- 



298 NATIONAL SOVEREIGNTY 

stnimentality of wind or fire, of sails or machinery. The whole 
weight of proof, then, is thrown upon him who would introduce 
a distinction to which the words of the law give no countenance. 

If a real difference could be admitted to exist between vessels 
carrying passengers and others, it has already been observed 
that there is no fact in this case which can bring up that 
question. And, if the occupation of steam-boats be a matter 
of such general notoriety that the court may be presumed to 
know it, although not specially informed by the record, then 
we deny that the transportation of passengers is their exclusive 
occupation. It is a matter of general history, that, in our west- 
ern waters, their principal employment is the transportation 
of merchandise ; and all know, that in the waters of the Atlantic 
they are frequently so employed. 

But all inquiry into this subject seems to the court to be put 
completely at rest, by the act already mentioned, entitled, 
"An act for the enrolling and licensing of steamboats." 

This act authorizes a steamboat employed, or intended to be 
employed, only in a river or bay of the United States, owned 
wholly or in part by an alien, resident within the United States, 
to be enrolled and licensed as if the same belonged to a citizen 
of the United States. 

This act demonstrates the opinion of Congress, that steam- 
boats may be enrolled and licensed, in common with vessels 
using sails. They are, of course, entitled to the same privileges, 
and can no more be restrained from navigating waters, and 
entering ports which are free to such vessels, than if they were 
wafted on their voyage by the winds, instead of being propelled 
by the agency of fire. The one element may be as legitimately 
used as the other, for every commercial purpose authorized 
by the laws of the Union; and the act of a State inhibiting the 
use of either to any vessel having a license under the act of 
Congress, comes, we think, in direct collision with that act. 

As this decides the cause, it is unnecessary to enter into an 
examination of that part of the constitution which empowers 
Congress to promote the progress of science and the useful 
arts. . . . 



PART FIVE. NATIONAL SOVEREIGNTY 
VERSUS STATE RIGHTS * 

CHAPTER XXXIII 

THE ADMISSION OF NEW STATES 

The constitutional significance of the debates on the admission of 
Missouri arises in the first instance from the attempts made to attach 
to an enabhng act conditions relating to slavery. In the session of 1818- 
19, Representative Tallmadge moved an amendment providing that the 
future introduction of slavery and involuntary servitude should be pro- 
hibited in the new State. The bill thus amended passed the House but 
failed in the Senate. A dead-lock followed. In the next session, the pro- 
hibitory proviso was renewed in a somewhat different form, known as 
the "Taylor Amendment." The following extracts touch only upon the 
question of restriction, not upon the political aspects of the controversy. 
The Treaty of 1803 was drawn again into consideration because the 
Territory of Missouri had been erected out of the Louisiana Purchase. 
The Thomas Amendment, eventually adopted by both Houses as a com- 
promise, appears as the eighth section of the enabling act. 

91. Representative Taylor on the Admission of Missouri} 

First. Has Congress power to require of Missouri a constitu- 
tional prohibition against the further introduction of slavery, 
as a condition of her admission into the Union? 

Second. If the power exist, is it wise to exercise it? 

Congress has no power unless it be expressly granted by 
the constitution, or necessary to the execution of some power 
clearly delegated. What, then, are the grants made to Congress 
in relation to the Territories? The third section of the fourth 
article declares, that "the Congress shall have power to dis- 
pose of and make all needful rules and regulations respecting 
the territory, or other property, belonging to the United 
States." It would be difficult to devise a more comprehensive 
grant of power. The whole subject is put at the disposal of 

^ February 15, i8ig. Annals of Congress, 15 Cong., 2 Sess., 1171-74 
passim. 



300 NATION V. STATE 

Congress, as well as the right of judging what regulations are 
proper to be made, as the power of making them is clearly 
granted. Until admitted into the Union, this political society 
is a territory; all the preliminary steps relating to its admission 
are territorial regulations. Hence, in all such cases. Congress 
has exercised the power of determining by whom the constitu- 
tion should be made, how its framers should be elected, when 
and where they should meet, and what propositions should be 
submitted to their decision. After its formation, the Congress 
examine its provisions, and, if approved, admit the State into 
the Union, in pursuance of a power delegated by the same 
section of the constitution, in the following words: "New 
States may be admitted by the Congress into the Union." 
This grant of power is evidently alternative; its exercise is com- 
mitted to the sound discretion of Congress; no injustice is done 
by declining it. But if Congress has the power of altogether 
refusing to admit new States, much more has it the power of 
prescribing such conditions of admission as may be judged 
reasonable. The exercise of this power, until now, has never 
been questioned. The act of 1802, under which Ohio was 
admitted into the Union, prescribed the condition that its 
constitution should not be repugnant to the ordinance of 1787. 
The sixth article of that ordinance declares, "there shall be 
neither slavery nor involuntary servitude in the said territory, 
otherwise than in the punishment of crimes whereof the party 
shall have been duly convicted." The same condition was 
imposed by Congress on the people of Indiana and Illinois. 
These States have all complied with it, and framed constitu- 
tions excluding slavery. Missouri lies in the same latitude. 
Its soil, productions, and climate are the same, and the same 
principles of government should be applied to it. 

But it is said that, by the treaty of 1803, with the French 
Republic, Congress is restrained from imposing this condition. 
The third article is quoted as containing the prohibition. It is 
in the following words: . . . The inhabitants of the ceded 
territory, when transferred from the protection of the French 
Republic, in regard to the United States, would have stood in 



THE ADMISSION OF NEW STATES 301 

the relation of aliens. The object of the article doubtless was 
to provide for their admission to the rights of citizens, and their 
incorporation into the American family. The treaty made no 
provision for the erection of new States in ceded territory. 
That was a question of national policy, properly reserved for 
the decision of those to whom the constitution had committed 
the power. The framers of the treaty well knew that the Presi- 
dent and Senate could not bind Congress to admit new States 
into the Union. ... If the President and Senate can, by treaty, 
change the Constitution of the United States, and rob Congress 
of a power clearly delegated, the doctrine may be true, but 
otherwise, it is false. The treaty, therefore, has no operation 
on the question in debate. Its requirements, however, have 
been faithfully fulfilled. In 1804, the laws of the United States 
were extended to that territory. The protection afforded by 
the Federal Constitution was guaranteed to its inhabitants. 
They were thus "incorporated in the Union," and secured in 
the enjoyment of their rights. The treaty stipulation being 
thus executed, "as soon as possible," it remained a question 
for the future determination of Congress, whether the Govern- 
ment should remain territorial or become that of an independ- 
ent State. In 181 1, this question was decided in relation to 
that part of the territory which then embraced nearly all the 
population, and to acquire which, alone, the treaty had been 
made. A law was passed to enable the people of the Territory 
of Orleans to form a constitution and State government, and to 
provide for its admission into the Union. Did Congress then 
doubt its power to annex conditions to such admission? No, 
sir, far from it. The government of Orleans had always been 
administered according to the principles of the civil law. The 
common law, so highly valued in other parts of our country, 
was not recognized there. Trial by jury was unknown to the 
inhabitants. Instead of a privilege, they considered its intro- 
duction an odious departure from their ancient administra- 
tion of justice. Left to themselves, they never would have in- 
troduced it. Congress, however, knowing these things, made 
it a condition of their admission into the Union, that trial 



302 NATION V. STATE 

by jury should be secured to the citizen by a constitutional 
provision. 

Even the language of the Territory was required to be 
changed, as a condition of its admission. The inhabitants were 
wholly French and Spanish. Theirs were the only languages 
generally spoken, or even understood. But Congress required 
from them a constitutional provision, that their legislative and 
judicial proceedings should be conducted in the English lan- 
guage. They were not left at liberty to determine this point for 
themselves. From these facts, it appears that Congress, at that 
day, acted from a conviction that it possessed the power of pre- 
scribing the conditions of their admission into the Union. . . . 

. . . The sovereignty of Congress in relation to the State, 
is limited by specific grants — but, in regard to the Territories, 
it is unlimited. Missouri was purchased with our money, and, 
until incorporated into the family of States, it may be sold for 
money. Can it then be maintained, that although we have 
the power to dispose of the whole Territory, we have no right 
to provide against the further increase of slavery within its 
limits? That, although we may change the political relations 
of its free citizens by transferring their country to a foreign 
power, we cannot provide for the gradual abolition of slavery 
within its limits, nor establish those civil regulations which 
naturally flow from self-evident truth? No, sir, it cannot; the 
practice of nations and the common sense of mankind have 
long since decided these questions. 

92. Representative McLane on the Admission of Missouri.^ 

Mr. Chairman, the great question involved in this amend- 
ment is neither more nor less than this : whether Congress can 
interfere with the people of Missouri, in the formation of their 
constitution, to compel them to introduce into it any provision, 
touching their municipal rights, against their consent, and to 
give up their right to change it, whatever may be their future 
condition, or that of their posterity? Every thing beyond this 

^ February 7, 1820. Annals of Congress, 16 Cong., i Sess., 1 141-60 
passim. 



THE ADMISSION OF NEW STATES 303 

is merely the imposing garb in which the power comes recom- 
mended to us. It is certainly true, that an attempt to take 
from this people the right of deciding whether they will or will 
not tolerate slavery among them, is less objectionable because 
of its end, than it would be if it interfered with some other 
local relation or right of property; but the power to do this 
implies a power of much greater expansion. Congress has no 
greater power over slavery, or the rights of the owner, in any 
particular State, than it has over any other local relation or 
domestic right; and, therefore, a power to interfere with one 
must be derived from a power to interfere with all. . . . 

The people of Missouri come here with the Treaty of 1803 
in their hands; they demand admission into the Union as a 
matter of right — they do not solicit it as a favor. If their 
constitution is republican and consistent with the provisions 
of that under which we are acting, we have no alternative, 
unless it is to refuse to execute our own contract — to violate 
the pHghted faith of the nation. . . „ 

They are to be incorporated into the Union of the United 
States, and are to be admitted as soon as possible to the enjoy- 
ment of the rights, advantages, and immunities, &c., and "in 
the mean time they are to be protected in the free enjoyment 
of their property." This latter clause shows that their incor- 
poration into the Union meant more than a Territorial form 
of government ; they were to be under such a government until 
they could be incorporated into the Union, and during that 
time their property was not to be disturbed. It was only under 
that form of government that the United States could interfere 
with these rights. Their power would cease when it became 
possible to incorporate them into the Union, and admit them 
to the enjoyment of all the "rights, advantages, and immuni- 
ties, of citizens of the United States;" in virtue of which, they 
would themselves be authorized to regulate their own property. 

Now, Mr. Chairman, the people of Missouri cannot be in- 
corporated into the Union but as the people of a "State," 
exercising State government. It is a Union of States, not of the 
people, much less of Territories. A Territorial government 



304 NATION v. STATE 

can form no integral part of a union of State governments; 
neither can the people of a Territory enjoy any federal rights, 
until they have formed a State government, and obtained 
admission into the Union. The most important of the federal 
advantages and immunities consist in the right of being repre- 
sented in Congress — as well in the Senate as in this House — 
the right of participating in the councils by which they are 
governed. These are emphatically the "rights, advantages, 
and immunities, of citizens of the United States." The inhab- 
itant of a Territory merely has no such rights — he is not a 
citizen of the United States. He is in a state of disability, as it 
respects his political or civil rights. Can it be called a "right" 
to acquire and hold property, and have no voice by which its 
disposition is to be regulated? Can it be called an advantage 
or immunity of a citizen of the United States to be subjected 
to a Government in whose deliberations he had no share or 
agency, beyond the mere arbitrary pleasure of the governor — 
to be ruled by a power irresponsible (to him, at least) for its 
conduct? Sir, the rights, advantages, and immunities, of citi- 
zens of the United States, and which are their proudest boast, 
are the rights of self-government — first, in their State consti- 
tutions; and secondly, in the Government of the Union, in 
which they have an equal participation. . . . 

. . . No little reliance has also been placed by the honor- 
able mover, upon the clause in the constitution, vesting in 
Congress a power to dispose of and make all needful rules and 
regulations respecting the territory, or other property belong- 
ing to the United States. 

I do not propose to enter minutely into the inquiry whether 
the power of Congress to estabhsh a territorial government is 
derived from this clause. I incline to the opinion that it is not. 
The power here conferred is a power to dispose of and make 
needful rules respecting the property of the United States. It 
was designed, I think, to authorize the sale of the land for pur- 
poses of revenue, and all regulations which might be deemed 
necessary for its proper disposition; or to convert it to other 
public objects disconnected with sale or revenue; to retain this 



THE ADMISSION OF NEW STATES 305 

power, even after the Territory had assumed a State govern- 
ment, and perhaps to divest from the State government the 
right of taxing it, as it would do the property of individuals. 
It is silent as to the people, and their slaves are the property of 
their owners, and not of the Government. The right to govern 
a territory is clearly incident to the right of acquiring it. It 
would be absurd to say that any Government might purchase 
a territory with a population, and not have the power to give 
them laws ; but, from whatever source the power is derivable, 
I admit it to be plenary, so long as it remains in a condition 
of territorial dependence, but no longer. I am wilKng at any 
time to exercise this power. I regret that it has not been done 
sooner. But, though Congress can give laws to a Territory, it 
cannot prescribe them to a State. The condition of the people 
of a Territory is to be governed by others ; of a State to govern 
themselves. This is the great favor we permit them to enjoy 
when we exalt them to the character of a State. The instant 
we authorize them to form their constitution, the territorial 
disabilities, and the powers of Congress over them, crumble 
together in the dust. A new being, and a new relation spring 
up; the State authority, derived from the just power of the 
people, takes its place ; every feature of the territorial authority 
becomes effaced, and the federal powers of Congress, encircling 
a State, commence their operation. There is nothing of terri- 
torial disability on the one hand, or territorial authority on the 
other, which passes into the new order of things; if they did, 
the State would be incomplete. . , . 

93. Senator Pinkney on the Admission of Missouri} 

"New States may be admitted by the Congress into this 
Union." It is objected that the word "may" imports power, 
not obligation — a right to decide — a discretion to grant or 
refuse. 

To this it might be answered, that power is duty, on many 
occasions. But let it be conceded that it is discretionary. What 

^ February 15, 1820. Annals of Congress, 16 Cong., i Sess., 397-99 
passim. 



3o6 NATION v. STATE 

consequence follows? A power to refuse, in a case Kke this, 
does not necessarily involve a power to exact terms. You 
must look to the result, which is the declared object of the 
power. Whether you will arrive at it or not may depend on 
your will ; but you cannot compromise with the result intended 
and professed. 

What, then, is the professed result? To admit a State into 
this Union. 

What is that Union? A confederation of States equal in 
sovereignty, capable of every thing which the constitution does 
not forbid, or authorize Congress to forbid. It is an equal 
Union between parties equally sovereign. They were sovereign, 
independently of the Union. The object of the Union was com- 
mon protection for the exercise of already existing sovereignty. 
The parties gave up a portion of that sovereignty to insure the 
remainder. As far as they gave it up by the common compact 
they have ceased to be sovereign. The Union provides the 
means of defending the residue, and it is into that Union that a 
new State is to come. By acceding to it the new State is placed 
on the same footing with the original States. It accedes for 
the same purpose; that is, protection for its unsurrendered 
sovereignty. If it comes in shorn of its beams — crippled and 
disparaged beyond the original States — it is not into the 
original Union that it comes. For it is a different sort of Union. 
The first was Union inter pares: this is a Union between dis- 
parates, between giants and a dwarf, between power and 
feebleness, between full proportioned sovereignties and a 
miserable image of power — a thing which that very Union 
has shrunk and shrivelled from its just size, instead of preserv- 
ing it in its true dimensions. . . . 

It is into "this Union" — that is, the Union of the Federal 
Constitution — that you are to admit or refuse to admit. 
You can admit into no other. You cannot make the Union, 
as to the new State, what it is not as to the old; for then it is 
not this Union that you open for the entrance of a new party. 
If you make it enter into a new and additional compact, is it 
any longer the same Union? . . . 



THE ADMISSION OF NEW STATES 307 

But it is a State which you are to admit. What is a State in the 
sense of the constitution? It is not a State in the general, but a 
State as you find in the constitution. A State, generally, is a 
body politic or independent political society of men. But the 
State which you are to admit must be more or less than this 
political entity. What must it be? Ask the constitution. It 
shows what it means by a State by reference to the parties to 
it. It must be such a State as Massachusetts, Virginia, and the 
other members of the American confederacy — a State with 
full sovereignty, except as the constitution restricts it. . . . 

In a word, the whole am.ount of the argument on the other 
side is, that you may refuse to admit a new State, and that 
therefore if you admit, you may prescribe the terms. 

The answer to that argument is, that even if you can refuse, 
you can prescribe no terms which are inconsistent with the 
act you are to do. You can prescribe no conditions which, if 
carried into effect, would make the new State less a sovereign 
State than, under the Union as it stands, it would be. You can 
prescribe no terms which will make the compact of Union 
between it and the original States essentially different from 
that compact among the original States. . . . 



CHAPTER XXXIV 

NULLIFICATION IN GEORGIA 

The presence of the Creek and Cherokee Indians within the territorial 
limits of Georgia, and occupying some of the best lands, was a source of 
constant irritation to the people of that State. Vexed at the delay of the 
National Government in securing the removal of the Creeks, the State 
authorities took steps to survey and occupy their lands. President Adams 
warned them to desist, intimating that the Federal Government was pre- 
pared to use force to defend the Indian claims. The Governor returned 
a defiant answer and called out the militia; and the legislature indorsed 
his course. Fortunately further trouble was avoided by a treaty (1827), 
which provided for the removal of the Creeks. Meantime, the Cherokee 
Nation had framed a constitution as though to form a State within the 
State. The legislature at once took steps to assert its jurisdiction over the 
Indian lands. Vigorous resolutions again were adopted and acts were 
passed incorporating the lands within five counties. Subsequently, a 
Cherokee by the name of George Tassels was tried and convicted of mur- 
der by the State courts. Deeming this a proper occasion for asserting the 
authority of the federal judiciary, Chief Justice Marshall sanctioned a 
writ of error citing the State authorities to appear before the Supreme 
Court. Thereupon the legislature passed the following resolutions, and 
completed its defiance by putting Tassels to death. In the meantime, 
the Cherokee Nation had sought an injunction from the Supreme Court 
to restrain the State of Georgia from extending her jurisdiction over their 
lands. In this purpose they were thwarted (Cherokee Nation v. State of 
Georgia). But when certain missionaries to the Cherokees were arrested 
and sentenced to imprisonment, for not complying with the law which 
required white persons to take out a license to reside within the Indian 
lands, the case was taken before the Supreme Court on writ of error and 
the following opinion rendered (Worcester v. Georgia). The authorities 
of Georgia, however, would not recognize the judgment of the Court, nor 
release Worcester and his fellow missionaries; and President Jackson 
declined to sustain the Court. 

94. Georgia and the Lands of the Creeks and Cherokees.^ 

Resolved, That all the lands appropriated and unappropri- 
ated, which He within the conventional limits of Georgia, 
belong to her absolutely; that the title is in her; that the 
Indians are tenants at her will ; that she may, at any time she 

^ Resolution of the Legislature of Georgia. Acts of Georgia, 1827, 248. 



NULLIFICATION IN GEORGIA 309 

pleases, determine that tenancy by taking possession of the 
premises ; and that Georgia has the right to extend her authority 
and laws over the whole territory, and to coerce obedience to 
them, from all description of people, be they white, red, or 
black, who reside within her limits. 

95. The Legislature of Georgia on the Case of George Tassels} 

Whereas, it appears by a communication, made by his 
Excellency the Governor, to this General Assembly, that the 
Chief Justice of the Supreme Court of the United States, has 
sanctioned a writ of error, and cited the State of Georgia, 
through her chief Magistrate, to appear before the Supreme 
Court of the United States to defend this State against said 
writ of error, at the instance of one George Tassels, recently 
convicted in Hall county, Superior Court, of the crime of 
murder. And whereas, the right to punish crimes, against the 
peace and good order of this state, in accordance with existing 
laws is an original and a necessary part of sovereignty which 
the State of Georgia has never parted with. 

Be it therefore resolved by the Senate, and House of Representa- 
tives of the State of Georgia, in General Assembly met. That they 
view with feelings of the deepest regret, the interference by the 
Chief Justice of the Supreme Court of the United States, in the 
Administration of the criminal laws of this state, and that such 
an interference is a flagrant violation of her rights. 

Resolved further , That his Excellency the Governor, be and he, 
and every officer of this State, is hereby requested and enjoined, 
to disregard any and every mandate and process that has been, 
or shall be served upon him or them, purporting to proceed from 
the Chief Justice, or any associate Justice of the Supreme Coui't 
of the United States, for the purpose of arresting the execution 
of any of the criminal laws of this State. 

And be it further resolved. That his Excellency the Governor, 
be and he is hereby authorized and required, with all the force 
and means, placed at his command, by the Constitution and 

^ Resolutions of the Legislature, December 22, 1830. Acts of Georgia, 
1830, 282. 



3IO NATION V. STATE 

laws of this State, to resist and repel, any and every invasion, 
from whatever quarter, upon the administration of the criminal 
laws of this State. 

Resolved, That the State of Georgia will never so far compro- 
mise her sovereignty as an independent State, as to become a 
party to the case sought to be made before the Supreme "Court 
of the United States, by the writ in question. 

Resolved, That his Excellency the Governor, be and he is 
hereby, authorized, to communicate to the Sheriff of Hall 
county by express, so much of the foregoing resolutions, and 
such order, as are necessary to insure the full execution of the 
laws, in the case of George Tassels, convicted of murder in Hall 
county. 

96. The Cherokee Nation v. The State of Georgia} 

Mr. Chief Justice Marshall delivered the opinion of the Court : 

. . . Before we can look into the merits of the case, a pre- 
liminary inquiry presents itself. Has this court jurisdiction of 
the cause? . . . 

Is the Cherokee nation a foreign state in the sense in which 
that term is used in the constitution? . . . 

Though the Indians are acknowledged to have an unques- 
tionable and, therefore, unquestioned right to the land they 
occupy, until that right shall be extinguished by a voluntary 
cession to our government; yet it may be doubted whether 
those tribes which reside within the acknowledged boundaries 
of the United States can, with strict accuracy, be denominated 
foreign nations. They may, more correctly, perhaps, be de- 
nominated domestic dependent nations. They occupy a terri- 
tory to which we assert a title independent of their will, which 
must take effect in point of possession when their right of pos- 
session ceases. Meanwhile they are in a state of pupilage. 
Their relation to the United States resembles that of a ward 
to his guardian. 

They look to our government for protection; rely upon its 
kindness and its power; appeal to it for relief to their wants; 
■ ^ Supreme Court of the United States, 1831. 5 Peters, i. 



NULLIFICATION IN GEORGIA 311 

and address the President as their great father. They and their 
country are considered by foreign nations, as well as by our- 
selves, as being so completely under the sovereignty of the 
United States, that any attempt to acquire their lands, or to 
form a political connection with them, would be considered 
by all as an invasion of our territory, and an act of hostil- 

ity. 

These considerations go far to support the opinion that the 
framers of our constitution had not the Indian tribes in view, 
when they opened the courts of the Union to controversies 
between a State or the citizens thereof and foreign states. . . . 

Be this as it may, the peculiar relations between the United 
States and the Indians occupying our territory are such, that we 
should feel much difficulty in considering them as designated 
by the term foreign state, were there no other part of the con- 
stitution which might shed light on the meaning of these words. 
But we think that in construing them, considerable aid is 
furnished by that clause in the 8th section of the ist article, 
which empowers Congress to "regulate commerce with foreign 
nations, and among the several States, and with the Indian 
tribes." 

In this clause they are as clearly contradistinguished by a 
name appropriate to themselves, from foreign nations, as from 
the several States composing the Union. They are designated 
by a distinct appellation; and as this appellation can be applied 
to neither of the others, neither can the appellation distinguish- 
ing either of the others be in fair construction apphed to them. 
The objects, to which the power of regulating commerce might 
be directed, are divided into three distinct classes — foreign 
nations, the several States, and Indian tribes. When forming 
this article, the convention considered them as entirely distinct. 
We cannot assume that the distinction was lost in framing a 
subsequent article, unless there be something in its language 
to authorize the assumption. . . . 

The court has bestowed its best attention on this question, 
and, after mature deliberation, the majority is of opinion that 
an Indian tribe or nation within the United States is not a for- 



312 NATION V. STATE 

eign state, in the sense of the constitution, and cannot maintain 
an action in the courts of the United States. 

97. Worcester v. The State of Georgia} 

Mr. Chief Justice Marshall delivered the opinion of the Court : 
The treaties and laws of the United States contemplate the 
Indian territory as completely separated from that of the 
States; and provide that all intercourse with them shall be 
carried on exclusively by the government of the Union. 
Is this the rightful exercise of power, or is it usurpation? 
While these States were colonies, this power, in its utmost 
extent, was admitted to reside in the crown. When our revolu- 
tionary struggle commenced, Congress was composed of an 
assemblage of deputies acting under specific powers granted 
by the legislatures, or conventions of the several colonies. It 
was a great popular movement, not perfectly organized; nor 
were the respective powers of those who were intrusted with 
the management of affairs accurately defined. The necessities 
of our situation produced a general conviction that those 
measures which concerned all must be transacted by a body in 
which the representatives of all were assembled, and which 
could command the confidence of all: Congress, therefore, was 
considered as invested with all the powers of war and peace, 
and Congress dissolved our connection with the mother coun- 
try, and declared these united colonies to be independent 
States. Without any written definition of powers, they em- 
ployed diplomatic agents to represent the United States at the 
several courts of Europe; offered to negotiate treaties with 
them, and did actually negotiate treaties with France. From 
the same necessity, and on the same principles, Congress 
assumed the management of Indian affairs; first in the name 
of these united colonies; and, afterwards, in the name of the 
United States. Early attempts were made at negotiation, and 
to regulate trade with them. These not proving successful, 
war was carried on under the direction, and with the forces of 
the United States, and the efiforts to make peace, by treaty, 
^ Supreme Court of the United States, 1832. 6 Peters, 515. 



NULLIFICATION IN GEORGIA 313 

were earnest and incessant. The confederation found Congress 
in the exercise of the same powers of peace and war, in our rela- 
tions with Indian nations, as with those of Europe. 

Such was the state of things when the confederation was 
adopted. That instrument surrendered the powers of peace and 
war to Congress, and prohibited them to the States, respectively, 
unless a State be actually invaded, "or shall have received cer- 
tain advice of a resolution being formed by some nation of 
Indians to invade such State, and the danger is so imminent 
as not to admit of delay till the United States in Congress 
assembled can be consulted." This instrument also gave the 
United States in Congress assembled the sole and exclusive 
right of "regulating the trade and managing all the affairs with 
the Indians, not members of any of the States : provided, that 
the legislative power of any State within its own limits be not 
infringed or violated." 

The ambiguous phrases which follow the grant of power to 
the United States were so construed by the States of North 
Carolina and Georgia as to annul the power itself. . . . The 
correct exposition of this article is rendered unnecessary by 
the adoption of our existing constitution. That instrument 
confers on Congress the powers of war and peace ; of making 
treaties, and of regulating commerce with foreign nations, and 
among the several States, and with the Indian tribes. These 
powers comprehend all that is required for the regulation of our 
intercourse with the Indians. They are not limited by any 
restrictions on their free actions. The shackles imposed on this 
power, in the confederation, are discarded. 

The Indian nations had always been considered as distinct, 
independent poHtical communities, retaining their original 
natural rights, as the undisputed possessors of the soil, from 
time immemorial, with the single exception of that imposed by 
irresistible power, which excluded them from intercourse with 
any other European potentate than the first discoverer of the 
coast of the particular region claimed : and this was a restriction 
which those European potentates imposed on themselves, as 
well as on the Indians. The very term "nation," so generally 



314 NATION V. STATE 

applied to them, means "a people distinct from others." The 
constitution, by declaring treaties already made, as well as 
those to be made, to be the supreme law of the land, has 
adopted and sanctioned the previous treaties with the Indian 
nations, and consequently admits their rank among those pow- 
ers who are capable of making treaties. The words "treaty" 
and "nation" are words of our own language, selected in our 
diplomatic and legislative proceedings, by ourselves, having 
each a definite and well-understood meaning. We have applied 
them to Indians, as we have applied them to the other nations 
of the earth. They are applied to all in the same sense. 

Georgia, herself, has furnished conclusive evidence that her 
former opinions on this subject concurred with those enter- 
tained by her sister States, and by the government of the 
United States. Various acts of her legislature have been cited 
in the argument, including the contract of cession made in the 
year 1802, all tending to prove her acquiescence in the universal 
conviction that the Indian nations possessed a full right to the 
lands they occupied, until that right should be extinguished 
by the United States, with their consent; that their territory 
was separated from that of any State within whose chartered 
limits they might reside, by a boundary line, established by 
treaties; that, within their boundary, they possessed rights 
with which no State could interfere; and that the whole power 
of regulating the intercourse with them, was vested in the 
United States. . . . 

The Cherokee nation, then, is a distinct community, occupy- 
ing its own territory, with boundaries accurately described, in 
which the laws of Georgia can have no force, and which the 
citizens of Georgia have no right to enter, but with the assent 
of the Cherokees themselves, or in conformity with treaties 
and with the acts of Congress. The whole intercourse between 
the United States and this nation, is, by our constitution and 
laws, vested in the government of the United States. 

The act of the State of Georgia, under which the plaintiff in 
error was prosecuted, is consequently void, and the judgment 
a nullity. Can this court revise and reverse it? 



NULLIFICATION IN GEORGIA 315 

If the objection to the system of legislation, lately adopted by 
the legislature of Georgia, in relation to the Cherokee nation, 
was confined to its extra-territorial operation, the objection, 
though complete, so far as respected mere right, would give this 
court no power over the subject. But it goes much further. If 
the review which has been taken be correct, and we think it is, 
the acts of Georgia are repugnant to the constitution, laws, and 
treaties of the United States. 

They interfere forcibly with the relations established between 
the United States and the Cherokee nation, the regulation of 
which, according to the settled principles of our constitution, 
are committed exclusively to the government of the Union. 

They are in direct hostility with treaties, repeated in a 
succession of years, which mark out the boundary that sepa- 
rates the Cherokee country from Georgia, guarantee to them 
all the land within their boundary, solemnly pledge the faith 
of the United States to restrain their citizens from trespassing 
on it, and recognize the pre-existing power of the nation to 
govern itself. 

They are in equal hostility with the acts of Congress for regu- 
lating this intercourse, and giving effect to the treaties. 

The forcible seizure and abduction of the plaintiff in error, 
who was residing in the nation with its permission, and by 
authority of the President of the United States, is also a viola- 
tion of the acts which authorize the chief magistrate to exercise 
this authority. 

Will these powerful considerations avail the plaintiff in error? 
We think they will. He was seized, and forcibly carried away, 
while under guardianship of treaties guaranteeing the country 
in which he resided, and taking it under the protection of the 
United States. He was seized while performing, under the 
sanction of the chief magistrate of the Union, those duties 
which the humane policy adopted by Congress had recom- 
mended. He was apprehended, tried, and condemned, under 
color of a law which has been shown to be repugnant to the 
constitution, laws, and treaties of the United States. Had a 
judgment, liable to the same objections, been rendered for 



3i6 NATION V. STATE 

property, none would question the jurisdiction of this court. 
It cannot be less clear when the judgment affects personal lib- 
erty, and inflicts disgraceful punishment, if punishment could 
disgrace when inflicted on innocence. The plaintiff in error is 
not less interested in the operation of this unconstitutional law 
than if it affected his property. He is not less entitled to the 
protection of the constitution, laws, and treaties of his country. 

This point has been elaborately argued and, after deliberate 
consideration, decided, in the case of Cohens v. The Common- 
wealth of Virginia, 6 Wheat., 264. 

It is the opinion of this court that the judgment of the 
superior court for the county of Gwinnett, in the State of 
Georgia, condemning Samuel A. Worcester to hard labor, in the 
penitentiary of the State of Georgia, for four years, was pro- 
nounced by that court under color of a law which is void, as 
being repugnant to the constitution, treaties, and laws of the 
United States, and ought, therefore, to be reversed and an- 
nulled. 



CHAPTER XXXV 

THE DOCTRINE OF NULLIFICATION 

The theory of nullification associated with the name of John C. Cal- 
houn was first set forth in a report which he drafted for a committee of 
the legislature of South Carolina. Adopted by the legislature with some 
modifications on December 19, 1828, this report became widely known as 
the "South Carolina Exposition." Between this date and 1832, Calhoun 
elaborated his doctrine in various letters and addresses. It was Calhoun 
who gave final form to the State-Rights doctrine. In contrast to the cur- 
rent view, he held that sovereignty could not be divided; that the States 
were originally sovereign; and that the general Government was merely 
the agent of the sovereign States. 

98. The South Carolina Exposition} 

... In order to have a full and clear conception of our 
institutions, it will be proper to remark that there is, in our 
system, a striking distinction between Government and Sover- 
eignty. The separate governments of the several States are 
vested in their Legislative, Executive, and Judicial Depart- 
ments; while the sovereignty resides in the people of the States 
respectively. The powers of the General Government are also 
vested in its Legislative, Executive, and Judicial Departments, 
while the sovereignty resides in the people of the several States 
who created it. But, by an express provision of the Constitu- 
tion, it may be amended or changed by three fourths of the 
States; and thus each State, by assenting to the Constitution 
with this provision, has modified its original right as a sover- 
eign, of making its individual consent necessary to any change 
in its pohtical condition ; and, by becoming a member of the 
Union, has placed this important power in the hands of three 
fourths of the States, — in whom the highest power known 
to the Constitution actually resides. Not the least portion of 
this high sovereign authority resides in Congress, or any of the 

^ Works of John C. Calhoun (Cralle ed.), vi, 36-51 passim. Adopted 
by the Legislature of South Carohna in December, 1828. 



3i8 NATION V. STATE . 

departments of the General Government. They are but the 
creatures of the Constitution, and afe appointed but to execute 
its provisions; and, therefore, any attempt by all, or any of 
these departments, to exercise any power which, in its conse- 
quences, may alter the nature of the instrument, or change 
the condition of the parties to it, would be an act of usurpa- 
tion. . . . 

If we look to the history and practical operation of the sys- 
tem, we shall find, on the side of the States, no means resorted 
to in order to protect their reserved rights against the encroach- 
ments of the General Government; while the latter has, from 
the beginning, adopted the most efficient to prevent the States 
from encroaching on those delegated to them. The 25th section 
of the Judiciary Act, passed in 1789, — immediately after the 
Constitution went into operation, — provides for an appeal 
from the State courts to the Supreme Court of the United 
States in all cases, in the decision of which, the construction of 
the Constitution, — the laws of Congress, or treaties of the 
United States may be involved; thus giving to that high tri- 
bunal the right of final interpretation, and the power, in reality, 
of nullifying the acts of the State Legislatures whenever, in 
their opinion, they may conflict with the powers delegated to 
the General Government. A more ample and complete protec- 
tion against the encroachments of the governments of the 
several States cannot be imagined ; and to this extent the power 
may be considered as indispensable and constitutional. But, 
by a strange misconception of the nature of our system, — 
and, in fact, of the nature of government, — it has been re- 
garded as the ultimate power, not only of protecting the Gen- 
eral Government against the encroachments of the govern- 
ments of the States, but also of the encroachments of the former 
on the latter; — and as being, in fact, the only means provided 
by the Constitution of confining all the powers of the system 
to their proper constitutional spheres; and, consequently, of 
determining the limits assigned to each. Such a construction 
of its powers would, in fact, raise one of the departments of the 
General Government above the parties who created the con- 



THE DOCTRINE OF NULLIFICATION 319 

stitutional compact, and virtually invest it with the authority 
to alter, at its pleasure, the relative powers of the General and 
State Governments, on the distribution of which, as established 
by the Constitution, our whole system rests; — and which, by 
an express provision of the instrument, can only be altered by 
three fourths of the States, as has already been shown. . . . 

As a substitute for the rightful remedy, in the last resort, 
against the encroachments of the General Government on the 
reserved powers, resort has been had to a rigid construction of 
the Constitution. A system Hke ours, of divided powers, must 
necessarily give great importance to a proper system of con- 
struction; but it is perfectly clear that no rule of construction, 
however perfect, can, in fact, prescribe bounds to the operation 
of power. ... In fact, the power of construction, on which its 
advocates relied to preserve the rights of the States, has been 
wielded, as it ever must be, if not checked, to destroy those 
rights. If the minority has a right to prescribe its rule of con- 
struction, a majority, on its part, will exercise a similar right ; 
but with this striking difference, — that the right of the former 
will be a mere nullity against that of the latter. But that pro- 
tection, which the minor interests must ever fail to find in any 
technical system of construction, may be found in the reserved 
rights of the States themselves, if they be properly called into 
action; and there only will they ever be found of sufficient 
efficacy. . . . 

If it be conceded, as it must be by every one who is the least 
conversant with our institutions, that the sovereign powers 
delegated are divided between the General and State Govern- 
ments, and that the latter hold their portion by the same tenure 
as the former, it would seem impossible to deny to the States 
the right of deciding on the infractions of their powers, and the 
proper remedy to be appHed for their correction. The right 
of judging, in such cases, is an essential attribute of sovereignty, 
— of which the States cannot be divested without losing their 
sovereignty itself, — and being reduced to a subordinate cor- 
porate condition. In fact, to divide power, and to give to one 
of the parties the exclusive right of judging of the portion 



320 NATION V. STATE 

allotted to each, is, in reality, not to divide it at all; and to 
reserve such exclusive right to the General Government (it 
matters not by what department to be exercised), is to convert 
it, in fact, into a great consolidated government, with unlim- 
ited powers, and to divest the States, in reality, of all their 
rights. It is impossible to understand the force of terms, and 
to deny so plain a conclusion. The opposite opinion can be 
embraced only on hasty and imperfect views of the relation 
existing between the States and the General Government. But 
the existence of the right of judging of their powers, so clearly 
estabhshed from the sovereignty of States, as clearly implies 
a veto or control, within its limits, on the action of the General 
Government, on contested points of authority; and this very 
control is the remedy which the Constitution has provided to 
prevent the encroachments of the General Government on the 
reserved rights of the States; and by which the distribution of 
power, between the General and State Governments, may be 
preserved for ever inviolable, on the basis established by the 
Constitution. It is thus effectual protection is afforded to the 
minority, against the oppression of the majority. . . . 

. . . How is the remedy to be applied by the States? In 
this inquiry a question may be made, — whether a State can 
interpose its sovereignty through the ordinary Legislature, but 
which the committee do not deem it necessary to investigate. 
. . . Whatever doubts may be raised as to the question, — 
whether the respective legislatures fully represent the sover- 
eignty of the States for this high purpose, there can be none 
as to the fact that a Convention fully represents them for all 
purposes whatever. Its authority, therefore, must remove 
every objection as to form, and leave the question on the single 
point of the right of the States to interpose at all. When 
convened, it will belong to the Convention itself to determine, 
authoritatively, whether the acts of which we complain be 
unconstitutional; and, if so, whether they constitute a violation 
so deliberate, palpable, and dangerous, as to justify the inter- 
position of the State to protect its rights. If this question be 
decided in the affirmative, the Convention will then determine 



THE DOCTRINE OF NULLIFICATION 321 

in what manner they ought to be declared null and void within 
the limits of the State; which solemn declaration, based on her 
rights as a member of the Union, would be obligatory, not only 
on her own citizens, but on the General Government itself; 
and thus place the violated rights of the State under the shield 
of the Constitution. . . . 

... As high as this right of interposition on the part of a 
State may be regarded in relation to the General Government, 
the constitutional compact provides a remedy against its abuse. 
There is a higher power, — placed above all by the consent of 
all, — the creating and preserving power of the system, — to 
be exercised by three fourths of the States, — and which, under 
the character of the amending power, can modify the whole 
system at pleasure, — and to the acts of which none can object. 
Admit, then, the power in question to belong to the States, — 
and admit its liability to abuse, — and what are the utmost 
consequences, but to create a presumption against the constitu- 
tionality of the power exercised by the General Government, 
— which, if it be well founded, must compel them to abandon 
it; — or, if not, to remove the difl&culty by obtaining the con- 
tested power in the form of an amendment to the Constitution. 
If, on an appeal for this purpose, the decision be favorable to 
the General Government, a disputed power will be converted 
into an expressly granted power; — but, on the other hand, 
if it be adverse, the refusal to grant will be tantamount to an 
inhibition of its exercise: and thus, in either case, the contro- 
versy will be determined. And ought not a sovereign State, 
as a party to the constitutional compact, and as the guardian 
of her citizens and her peculiar interests, to have the power in 
question? Without it, the amending power must become obso- 
lete, and the Constitution, through the exercise of construction, 
in the end utterly subverted. Let us examine the case. The 
disease is, that a majority of the States, through the General 
Government, by construction, usurp powers not delegated, 
and by their exercise, increase their wealth and authority at the 
expense of the minority. How absurd, then, to expect the in- 
jured States to attempt a remedy by proposing an amendment 



322 NATION V. STATE 

to be ratified by three fourths of the States, when, by supposi- 
tion, there is a majority opposed to them! Nor would it be less 
absurd to expect the General Government to propose amend- 
ments, unless compelled to that course by the acts of a State. 
The Government can have no inducement. It has a more sum- 
mary mode, — the assumption of power by construction. The 
consequence is clear : — neither would resort to the amend- 
ing power; — the one, because it would be useless, — and the 
other, because it could effect its purpose without it; — and 
thus the highest power known to the Constitution, — on the 
salutary influence of which, on the operations of our political 
institutions, so much was calculated, would become, in prac- 
tice, obsolete, as stated ; and in lieu of it, the will of the majority, 
under the agency of construction, would be substituted, with 
unlimited and supreme power. On the contrary, giving the 
right to a State to compel the General Government to abandon 
its pretensions to a constructive power, or to obtain a positive 
grant of it, by an amendment to the Constitution, would call 
efficiently into action, on all important disputed questions, this 
highest power of the system, — to whose controlling authority 
no one can object, and under whose operation all controver- 
sies between the States and General Government would be 
adjusted, and the Constitution gradually acquire all the per- 
fection of which it is susceptible. It is thus that the creating 
becomes the preserving power; and we may rest assured it is 
no less true in poHtics than in theology, that the power which 
creates can alone preserve, — and that preservation is per- 
petual creation. Such will be the operation and effect of State 
interposition. ... 

99. Report for a Committee of the South Carolina Legislature} 

The General Government, properly considered, is but a 
great political association, in which the States, as parties to the 
contract that formed it, are partners, and the Government the 
direction. Among the leading and essential provisions of the 
contract are, — that no powers should be granted to the asso- 
^ November, 1831. Works of Calhoun (Cralleed.), vi, 111-12. 



THE DOCTRINE OF NULLIFICATION 323 

elation, or exercised by the direction, except such as have been 
assented to by three fourths of all the partners, and that the 
compact, forming the association, shall not be changed or al- 
tered but by a proportional number of the partners; but that 
the powers granted, with a few specified exceptions, should be 
exercised by a majority of the direction, appointed by a 
majority of the partners; thus subjecting the two to a very 
different control; in the former, the will of the majority pre- 
vails, — while in the latter, the consent of three fourths of the 
partners is required. 

Thus organized, it is impossible not to see, that the interest 
which controls in the direction, must come into conflict with 
that which prevails with the partners or stockholders ; and that, 
unless there be, on the part of the latter, a right to compel the 
former to submit all questions touching the compact of asso- 
ciation, to the stockholders themselves, according to the pro- 
vision of the contract, the interests of the direction would 
absorb those of the stockholders, — the By-Laws would prevail 
over the Charter; — and we accordingly find, in all private 
associations, such a right universally recognized, as essential 
to protect the rights and interests of the stockholders, against 
those of the direction. But as essential as this is in all such 
associations, it is far more so in our great Political Joint-Stock 
Association, — comprehending, as it does, powers that may 
touch the labor and capital of the whole community ; and when, 
of course, the motives to encroachment are infinitely stronger 
than they can be in any case of private association. . . . 

100. The Fort Hill Letter on State Interposition} 

. . . From the beginning, and in all the changes of political 
existence through which we have passed, the people of the 
United States have been united as forming political communi- 
ties, and not as individuals. Even in the first stage of existence, 
they formed distinct colonies, independent of each other, and 
politically united only through the British crown. In their 

^ Calhoun to General Hamilton, August 28, 1832. Works of Calhoun 
(Cralle ed.), vi, 147-69 passim. 



324 NATION V. STATE 

first imperfect union, for the purpose of resisting the encroach- 
ments of the mother country, they united as distinct poHtical 
communities ; and passing from their colonial condition, in the 
act announcing their independence to the world, they declared 
themselves, by name and enumeration, free and independent 
States. In that character, they formed the old confederation; 
and, when it was proposed to supersede the articles of the 
confederation by the present Constitution, they met in con- 
vention as States, acted and voted as States; and the Consti- 
tution, when formed, was submitted for ratification to the 
people of the several States; it was ratified by them as States, 
each State for itself; each by its ratification binding its own 
citizens : the parts thus separately binding themselves, and not 
the whole the parts; to which, if it be added, that it is declared 
in the preamble of the Constitution to be ordained by the peo- 
ple of the United States, and in the article of ratification, 
when ratified, it is declared "/o he binding between the States so 
ratifying,''^ the conclusion is inevitable, that the Constitution 
is the work of the people of the States, considered as separate 
and independent pohtical communities; that they are its 
authors — their power created it, their voice clothed it with 
authority; that the government formed is, in reality, their 
agent; and that the Union, of which the Constitution is the 
bond, is a union of States, and not of individuals. . . . 

First, they [Secession and NuUification] are wholly dissimilar 
in their nature. One has reference to the parties themselves, and 
the other to their agents. Secession is a withdrawal from the Union; 
a separation from partners, and, as far as depends on the mem- 
ber withdrawing, a dissolution of the partnership. It presup- 
poses an association; a union of several States or individuals 
for a common object. Wherever these exist, secession may; and 
where they do not, it cannot. Nullification, on the contrary, 
presupposes the relation of principal and agent: the one granting 
a power to be executed, — the other, appointed by him with 
authority to execute it; and is simply a declaration on the part 
of the principal, made in due form, that an act of the agent tran- 
scending his power is null and void. It is a right belonging exclu- 



THE DOCTRINE OF NULLIFICATION 325 

sively to the relation between principal and agent, to be found 
wherever it exists, and in all its forms, between several, or an 
association of principals, and their joint agents, as well as 
between a single principal and his agent. 

The difference in their object is no less striking than in their 
nature. The object of secession is to free the withdrawing 
member from the obligation of the association or union, and 
is applicable to cases where the object of the association or 
union has failed, either by an abuse of power on the part of its 
members, or other causes. Its direct and immediate object, as it 
concerns the withdrawing member, is the dissolution of the associ- 
ation or union, as far as it is concerned. On the contrary, the 
object of nullification is to confine the agent within the limits 
of his powers, by arresting his acts transcending them, not 
with the view of destroying the delegated or trust power, but to pre- 
serve it, by compelling the agent to fulfil the object for which the 
agency or trust was created; and is applicable only to cases 
where the trust or delegated powers are transcended on the part of 
the agent. . , . 



CHAPTER XXXVI 

NULLIFICATION IN SOUTH CAROLINA 

By the year 1832 the people of South Carolina were prepared to put 
the doctrine of nuUification to a practical test. The preliminary steps in 
the process conformed to Calhoun's views. The ordinance not only 
declared the various tariff acts null and void, but pointed out to the legis- 
lature how it should prevent the collection of duties. In measuring the 
success of nullification as a constitutional remedy, many considerations 
— which cannot be easily illustrated by selected documents — must be 
taken into account. The legislature of South Carolina met the demands 
of the convention by passing the Replevin and other acts. Over against 
these measures, however, must be set President Jackson's arraignment of 
the ordinance, the uninterrupted collection of duties in South Carolina, 
and the Force Act. South Carohna could point, to be sure, to the lower 
duties of the compromise tariff of 1833 as evidence that nullification had 
accompUshed its purpose, and to its ordinance nullifying the Force Act 
as evidence that nullification had not been abandoned as a remedy. On 
the other hand, no State sustained the position of South Carolina, and the 
Force Act remained on the statute books of the United States — a silent 
reminder that the Government at Washington had not recognized nulli- 
fication as a constitutional remedy. 

loi. South Carolina Ordinance of Nullification} 

Whereas the Congress of the United States, by various acts, 
purporting to be acts laying duties and imposts on foreign 
imports, but in reality intended for the protection of domestic 
manufactures, and the giving of bounties to classes and indi- 
viduals engaged in particular employments, at the expense and 
to the injury and oppression of other classes and individuals, 
and by wholly exempting from taxation certain foreign com- 
modities, such as are not produced or manufactured in the 
United States, to afford a pretext for imposing higher and 
excessive duties on articles similar to those intended to be 
protected, hath exceeded its just powers under the Constitu- 
tion, which confers on it no authority to afford such protection, 
and hath violated the true meaning and intent of the Consti- 
^ November 24, 1832. Senate Documents, No. 30, 22 Cong., 2 Sess., 36-38. 



> 



NULLIFICATION IN SOUTH CAROLINA 327 

tution, which provides for equahty in imposing the burthens 
of taxation upon the several States and portions of the confed- 
eracy : And whereas the said Congress, exceeding its just power 
to impose taxes and collect revenue for the purpose of effecting 
and accomplishing the specific objects and purposes which the 
Constitution of the United States authorizes it to effect and 
accomplish, hath raised and collected unnecessary revenue for 
objects unauthorized by the Constitution: 

We, therefore, the people of the State of South Carolina in 
Convention assembled, do declare and ordain, and it is hereby 
declared and ordained, that the several acts and parts of acts 
of the Congress of the United States, purporting to be laws for 
the imposing of duties and imposts on the importation of 
foreign commodities, and now having actual operation and 
effect within the United States, and, more especially, an act 
entitled "An act in alteration of the several acts imposing 
duties on imports," approved on the nineteenth day of May, 
one thousand eight hundred and twenty-eight, and also an 
act entitled "An act to alter and amend the several acts im- 
posing duties on imports," approved on the fourteenth day of 
July, one thousand eight hundred and thirty-two, are unauthor- 
ized by the Constitution of the United States, and violate the 
true meaning and intent thereof, and are null, void, and no 
law, nor binding upon this State, its officers or citizens ; and all 
promises, contracts, and obligations, made or entered into, or 
to be made or entered into, with purpose to secure the duties 
imposed by the said acts, and all judicial proceedings which 
shall be hereafter had in affirmance thereof, are and shall be 
held utterly null and void. 

And it is further ordained, that it shall not be lawful for any 
of the constituted authorities, whether of this State or of the 
United States, to enforce the payment of duties imposed by 
the said acts within the limits of this State; but it shall be the 
duty of the Legislature to adopt such measures and pass such 
acts as may be necessary to give full effect to this ordinance, 
and to prevent the enforcement and arrest the operation of the 
said acts and parts of acts of the Congress of the United States 



328 NATION V. STATE 

within the limits of this State, from and after the ist day of 
February next, and the duty of all other constituted authori- 
ties, and of all persons residing or being within the limits of this 
State, and they are hereby required and enjoined, to obey and 
give effect to this ordinance, and such acts and measures of the 
Legislature as may be passed or adopted in obedience thereto. 

And it is further ordained, that in no case of law or equity, 
decided in the courts of this State, wherein shall be drawn in 
question the authority of this ordinance, or the validity of such 
act or acts of the Legislature as may be passed for the purpose 
of giving effect thereto, or the validity of the aforesaid acts of 
Congress, imposing duties, shall any appeal be taken or allowed 
to the Supreme Court of the United States, nor shall any copy 
of the record be permitted or allowed for that purpose ; and if 
any such appeal shall be attempted to be taken, the courts of 
this State shall proceed to execute and enforce their judgments, 
according to the laws and usages of the State, without reference 
to such attempted appeal, and the person or persons attempt- 
ing to take such appeal may be dealt with as for a contempt 
of the court. 

And it is further ordained, that all persons bow [now] holding 
any office of honor, profit, or trust, civil or military, under this 
State, (members of the Legislature excepted,) shall, within 
such time, and in such manner as the Legislature shall prescribe, 
take an oath well and truly to obey, execute and enforce, this 
ordinance, and such act or acts of the Legislature as may be 
passed in pursuance thereof, according to the true intent and 
meaning of the same; and on the neglect or omission of any such 
person or persons so to do, his or their office or offices shall be 
forthwith vacated, and shall be filled up as if such person or 
persons were dead or had resigned; and no person hereafter 
elected to any ofi&ce of honor, profit, or trust, civil or mihtary, 
(members of the Legislature excepted,) shall, until the Legis- 
lature shall otherwise provide and direct, enter on the execu- 
tion of his ofiice, or be in any respect competent to discharge 
the duties thereof, until he shall, in like manner, have taken a 
similar oath; and no juror shall be empannelled in any of the 



NULLIFICATION IN SOUTH CAROLINA 329 

courts of this State, in any cause in which shall be in question 
this ordinance, or any act of the Legislature passed in pursu- 
ance thereof, unless he shall first, in addition to the usual oath, 
have taken an oath that he will well and truly obey, execute, 
and enforce this ordinance, and such act or acts of the Legisla- 
ture as may be passed to carry the same into operation and 
effect, according to the true intent and meaning thereof. 

And we, the people of South Carolina, to the end that it may 
be fully understood by the Government of the United States, 
and the people of the co-States, that we are determined to 
maintain this, our ordinance and declaration, at every hazard, 
do further declare that we will not submit to the application of 
force, on the part of the Federal Government, to reduce this 
State to obedience; but that we will consider the passage, by 
Congress, of any act authorizing the employment of a mihtary 
or naval force against the State of South Carolina, her consti- 
tuted authorities or citizens; or any act abolishing or closing 
the ports of this State, or any of them, or otherwise obstructing 
the free ingress and egress of vessels to and from the said ports, 
or any other act on the part of the Federal Government, to 
coerce the State, shut up her ports, destroy or harrass her com- 
merce, or to enforce the acts hereby declared to be null and 
void, otherwise than through the civil tribunals of the country, 
as inconsistent with the longer continuance of South Carolina 
in the Union : and that the people of this State will thenceforth 
hold themselves absolved from all further obligation to main- 
tain or preserve their political connexion with the people of 
the other States, and will forthwith proceed to organize a 
separate Government, and do all other acts and things which 
sovereign and independent States may of right do. 

102. President Jackson's Proclamation to the People of South 

Carolina. ^ 

The ordinance is founded, not on the indefeasible right of 
resisting acts which are plainly unconstitutional, and too 

^ December lo, 1832. Richardson, Messages and Papers of the Presi- 
dents, n, 641-52 passim. 



330 NATION v. STATE 

oppressive to be endured ; but on the strange position that any 
one State may not only declare an act of Congress void, but 
prohibit its execution — that they may do this consistently with 
the Constitution — that the true construction of that instru- 
ment permits a State to retain its place in the Union, and yet 
be bound by no other of its laws than those it may choose to 
consider as constitutional. It is true, they add, that to justify 
this abrogation of a law, it must be palpably contrary to the 
Constitution ; but it is evident, that, to give the right of resist- 
ing laws of that description, coupled with the uncontrolled right 
to decide what laws deserve that character, is to give the power 
of resisting all laws. For, as by the theory, there is no appeal, 
the reasons alleged by the State, good or bad, must prevail. If 
it should be said that public opinion is a sufficient check against 
the abuse of this power, it may be asked why it is not deemed a 
sufficient guard against the passage of an unconstitutional act 
by Congress? There is, however, a restraint in this last case, 
which makes the assumed power of a State more indefensible, 
and which does not exist in the other. There are two appeals 
from an unconstitutional act passed by Congress — one to the 
Judiciary, the other to the people, and the States. There is no 
appeal from the State decision in theory, and the practical 
illustration shows that the courts are closed against an applica- 
tion to review it, both judges and jurors being sworn to decide 
in its favor. But reasoning on this subject is superfluous, when 
our social compact, in express terms, declares that the laws of 
the United States, its Constitution, and treaties made under 
it, are the supreme law of the land; and, for greater caution, 
adds "that the judges in every State shall be bound thereby, 
anything in the Constitution or laws of any State to the con- 
trary notwithstanding." And it may be asserted without fear 
of refutation, that no Federative Government could exist with- 
out a similar provision. Look for a moment to the conse- 
quence. If South Carolina considers the revenue laws unconsti- 
tutional, and has a right to prevent their execution in the port 
of Charleston, there would be a clear constitutional objection 
to their collection in every other port, and no revenue could be 



NULLIFICATION IN SOUTH CAROLINA 331 

collected anywhere; for all imposts must be equal. It is no 
answer to repeat, that an unconstitutional law is no law, so 
long as the question of its legality is to be decided by the State 
itself; for every law operating injuriously upon any local inter- 
est will be perhaps thought, and certainly represented, as uncon- 
stitutional, and, as has been shown, there is no appeal. . . . 

I consider, then, the power to annul a law of the United 
States, assumed by one State, incompatible with the exist- 
ence OF THE Union, contradicted expressly by the letter 
OF THE Constitution, unauthorized by its spirit, incon- 
sistent with every principle on which it was founded, 

AND destructive OF THE GREAT OBJECT FOR WHICH IT WAS 
FORMED. 

After this general view of the leading principle, we must 
examine the particular appHcation of it which is made in the 
ordinance. 

The preamble rests its justification on these grounds: It 
assumes, as a fact, that the obnoxious laws, although they 
purport to be laws for raising revenue, were in reality intended 
for the protection of manufactures, which purpose it asserts 
to be unconstitutional; that the operation of these laws is 
unequal; that the amount raised by them is greater than is 
required by the wants of the Government; and, finally, that 
the proceeds are to be appHed to objects unauthorized by the 
Constitution. These are the only causes alleged to justify an 
open opposition to the laws of the country, and a threat of 
seceding from the Union, if any attempt should be made to 
enforce them. The first virtually acknowledges that the law 
in question was passed under a power expressly given by the 
Constitution to lay and collect imposts; but its constitution- 
ality is drawn in question from the motives of those who passed 
it. However apparent this purpose may be in the present case, 
nothing can be more dangerous than to admit the position that 
an unconstitutional purpose, entertained by the members who 
assent to a law enacted under a constitutional power, shall 
make that law void: for how is that purpose to be ascertained? 
Who is to make the scrutiny? How often may bad purposes be 



332 NATION V. STATE 

falsely imputed — in how many cases are they concealed by 
false professions — in how many is no declaration of motive 
made? Admit this doctrine, and you give to the States an 
uncontrolled right to decide, and every law may be annulled 
under this pretext. If, therefore, the absurd and dangerous 
doctrine should be admitted, that a State may annul an uncon- 
stitutional law, or one that it deems such, it will not apply to 
the present case. 

The next objection is, that the laws in question operate un- 
equally. This objection may be made with truth, to every law 
that has been or can be passed. The wisdom of man never yet 
contrived a system of taxation that would operate with perfect 
equality. If the unequal operation of a law makes it unconsti- 
tutional, and if all laws of that description may be abrogated 
by any State for that cause, then indeed is the Federal Consti- 
tution unworthy of the slightest effort for its preservation. . . . 

The two remaining objections made by the ordinance to 
these laws, are that the sums intended to be raised by them 
are greater than are required, and that the proceeds will be 
unconstitutionally employed. 

The Constitution has given, expressly, to Congress the right 
of raising revenue, and of determining the sum the public 
exigencies will require. The States have no control over the 
exercise of this right other than that which results from the 
power of changing the representatives who abuse it, and thus 
procure redress. Congress may, undoubtedly, abuse this dis- 
cretionary power, but the same may be said of others with 
which they are vested. Yet the discretion must exist some- 
where. The Constitution has given it to the representatives 
of all the people, checked by the representatives of the States, 
and by the Executive Power. The South CaroHna construc- 
tion gives it to the Legislature or the Convention of a single 
State, where neither the people of the different States, nor the 
States in their separate capacity, nor the Chief Magistrate 
elected by the people, have any representation. Which is the 
most discreet disposition of the power? . . . 

These are the alternatives that are presented by the Con- 



NULLIFICATION IN SOUTH CAROLINA 333 

vention : a repeal of all the acts for raising revenue, leaving the 
Government without the means of support, or an acquiescence 
in the dissolution of our Union by the secession of one of its 
members. When the first was proposed, it was known that it 
could not be listened to for a moment. It was known, if force 
was applied to oppose the execution of the laws that it must be 
repelled by force; that Congress could not, without involving 
itself in disgrace and the country in ruin, accede to the proposi- 
tion : and yet if this is not done in a given day, or if any attempt 
is made to execute the laws, the State is, by the ordinance, 
declared to be out of the Union. The majority of a Convention 
assembled for the purpose, have dictated these terms, or rather 
this rejection of all terms, in the name of the people of South 
Carolina. It is true that the Governor of the State speaks of 
the submission of their grievances to a Convention of all the 
States, which, he says, they "sincerely and anxiously seek and 
desire." Yet this obvious and constitutional mode of obtaining 
the sense of the other States on the construction of the federal 
compact, and amending it, if necessary, has never been 
attempted by those who have urged the State on to this 
destructive measure. The State might have proposed the call 
for a General Convention to the other States; and Congress, 
if a sufficient number of them concurred, must have called it. 
But the first magistrate of South Carolina, when he expressed 
a hope that, "on a review by Congress and the functionaries of 
the General Government, of the merits of the controversy," 
such a Convention will be accorded to them, must have known 
that neither Congress, nor any functionary of the General 
Government, has authority to call such a Convention, unless it 
be demanded by two-thirds of the States. This suggestion, 
then, is another instance of the reckless inattention to the pro- 
visions of the Constitution with which this crisis has been 
madly hurried on; or of the attempt to persuade the people 
that a constitutional remedy had been sought and refused. If 
the Legislature of South Carolina "anxiously desire" a General 
Convention to consider their complaints, why have they not 
made application for it in the way the Constitution points out? 



334 NATION v. STATE 

The assertion that they "earnestly seek it" is completely 
negatived by the omission. 

This, then, is the position in which we stand. A small 
majority of the citizens of one State in the Union have elected 
delegates to a State Convention ; that Convention has ordained 
that all the revenue laws of the United States must be repealed, 
or that they are no longer a member of the Union. The Gov- 
ernor of that State has recommended to the Legislature the rais- 
ing of an army to carry the secession into effect, and that he 
may be empowered to give clearances to vessels in the name 
of the State. No act of violent opposition to the laws has yet 
been committed, but such a state of things is hourly appre- 
hended ; and it is the intent of this instrument to proclaim, not 
only that the duty imposed on me by the Constitution "to 
take care that the laws be faithfully executed," shall be per- 
formed to the extent of the powers already vested in me by 
law, or of such others as the wisdom of Congress shall devise 
and entrust to me for that purpose, but to warn the citizens 
of South Carolina who have been deluded into an opposition 
to the laws, of the danger they will incur by obedience to the 
illegal and disorganizing ordinance of the Convention; to exhort 
those who have refused to support it to persevere in their deter- 
mination to uphold the Constitution and laws of their country; 
and to point out to all the perilous situation into which the 
good people of that State have been led, and that the course 
they are urged to pursue is one of ruin and disgrace to the very 
State whose rights they affect to support. . . . 



CHAPTER XXXVII 

THE NATURE OF THE UNION 

Down to the time of Calhoun, it was commonly held that the Union 
had been formed by an agreement or compact to which the States were 
parties. When the Constitution was framed, sovereignty was divided. 
As the Supreme Court said in Chisholm v. Georgia, "The United States 
are sovereign as to all the powers of government actually surrendered. 
Each State in the Union is sovereign as to the powers reserved." In his 
proclamation to the people of South Carolina, President Jackson com- 
bated nullification on the ground that the Union was a binding compact. 
The foremost defender of the nationalist theory of the Union was Daniel 
Webster. In his famous reply to Hayne in the Senate, January 26 and 27, 
1830, he repudiated the current compact theory. He contended that the 
Union was established by the people of the United States just as a State 
constitution is formed by an agreement between individuals. "When the 
people agree to erect a government and actually erect it, the thing is done, 
and the agreement is at an end. The compact is executed, and the end 
designed by it is attained." From Webster's point of view, the Consti- 
tution is not a contract, but a supreme law ordained and established by 
the people of the United States. The Union is " the association of the peo- 
ple under a constitution of government, uniting their highest interests, 
cementing their present enjoyments, and blending in an indivisible mass 
all their hopes for the future." 

103. The Federal Compact a Binding Obligation^ 

The Constitution of the United States then forms a govern- 
ment, not a league; and whether it be formed by compact 
between the States, or in any other manner, its character is the 
same. It is a government in which all the people are repre- 
sented, which operates directly on the people individually, not 
upon the States — they retained all the power they did not 
grant. But each State having expressly parted with so many 
powers as to constitute, jointly with the other States, a single 
nation, cannot, from that period, possess any right to secede, 
because such secession does not break a league, but destroys 

^ Proclamation of President Jackson to the People of South Carolina, 
December 10, 1832. Richardson, Messages and Papers of the Presidents, 
II, 648-50 passim. 



336 NATION v. STATE 

the unity of a nation; and any injury to that unity is not only 
a breach which would result from the contravention of a com- 
pact, but it is an offence against the whole Union. To say that 
any State may at pleasure secede from the Union, is to say 
that the United States are not a nation, because it would be a 
solecism to contend that any part of a nation might dissolve 
its connexion with the other parts, to their injury or ruin, with- 
out committing any offence. Secession, like any other revolu- 
tionary act, may be morally justified by the extremity of 
oppression ; but to call it a constitutional right, is confounding 
the meaning of terms; and can only be done through gross 
error, or to deceive those who are willing to assert a right, but 
would pause before they made a revolution, or incur the pen- 
alties consequent on a failure. 

Because the Union was formed by compact, it is said the 
parties to that compact may, when they feel themselves 
aggrieved, depart from it: but it is precisely because it is a 
compact that they cannot. A compact is an agreement or 
binding obligation. It may by its terms have a sanction or 
penalty for its breach or it may not. If it contains no sanction, 
it may be broken with no other consequence than moral guilt: 
if it have a sanction, then the breach insures the designated or 
implied penalty. A league between independent nations, gen- 
erally, has no sanction other than a moral one; or if it should 
contain a penalty, as there is no common superior, it cannot be 
enforced. A government, on the contrary, always has a sanc- 
tion, express or implied; and, in our case, it is both necessarily 
implied and expressly given. An attempt, by force of arms, to 
destroy a government, is an offence by whatever means the 
constitutional compact may have been formed, and such 
government has the right, by the law of self-defence, to pass 
acts for punishing the offender, unless that right is modified, 
restrained, or resumed by the constitutional act. In our system, 
although it is modified in the case of treason, yet authority is ex- 
pressly given to pass all laws necessary to carry its powers into 
effect, and, under this grant, provision has been made for punish- 
ing acts which obstruct the due administration of the laws. . . . 



THE NATURE OF THE UNION 337 

The States severally have not retained their entire sover- 
eignty. It has been shown that, in becoming parts of a nation, 
not members of a league, they surrendered many of their 
essential parts of sovereignty. The right to make treaties — 
declare war — levy taxes — exercise exclusive judicial and 
legislative powers — were all of them functions of sovereign 
power. The States, then, for all these purposes, were no longer 
sovereign. The allegiance of their citizens was transferred, in 
the first instance, to the Government of the United States: 
they became American citizens, and owed obedience to the 
Constitution of the United States, and to laws made in con- 
formity with the powers it vested in Congress. This last posi- 
tion has not been, and cannot be denied. How, then, can that 
State be said to be sovereign and independent whose citizens 
owe obedience to laws not made by it, and whose magistrates 
are sworn to disregard those laws when they come in conflict 
with those passed by another? What shows conclusively that 
the States cannot be said to have reserved an undivided sover- 
eignty, is, that they expressly ceded the right to punish treason, 
not treason against their separate power, but treason against 
the United States. Treason is an offence against sovereignty, 
and sovereignty must reside with the power to punish it. But 
the reserved rights of the States are not less sacred because 
they have, for their common interest, made the General 
Government a depository of these powers. . . . 

104. Webster's Reply to Hayne of South Carolina.'^ 

I understand the honorable gentleman from South Carolina 
to maintain, that it is a right of the State Legislatures to inter- 
fere, whenever, in their judgment, this Government transcends 
its constitutional limits, and to arrest the operation of its 
laws. . . . 

What he contends for, is, that it is constitutional to interrupt 
the administration of the constitution itself, in the hands of 
those who are chosen and sworn to administer it, by the direct 

^ Senate. January 26-27, 1830. Works of Daniel Webster (1851), m, 
270-342, passim. 



338 NATION v. STATE 

interference, in form of law, of the States, in virtue of their 
sovereign capacity. The inherent right in the people to reform 
their government, I do not deny; and they have another right, 
and that is, to resist unconstitutional laws, without overturn- 
ing the Government. It is no doctrine of mine, that unconsti- 
tutional laws bind the people. The great question is, whose 
prerogative is it to decide on the constitutionality or uncon- 
stitutionality of the laws? On that, the main debate hinges. 
The proposition, that, in case of a supposed violation of the 
constitution by Congress, the States have a constitutional right 
to interfere, and annul the law of Congress, is the proposition 
of the gentleman: I do not admit it. If the gentleman had 
intended no more than to assert the right of revolution, for 
justifiable cause, he would have said only what all agree to. 
But I cannot conceive that there can be a middle course, 
between submission to the laws, when regularly pronounced 
constitutional, on the one hand, and open resistance, which is 
revolution, or rebellion, on the other. I say, the right of a 
State to annul a law of Congress, cannot be maintained but 
on the ground of the unalienable right of man to resist oppres- 
sion; that is to say, upon the ground of revolution. I admit 
that there is an ultimate violent remedy, above the constitu- 
tion, and in defiance of the constitution, which may be resorted 
to, when a revolution is to be justified. But I do not admit 
that, under the constitution, and in conformity with it, there 
is any mode in which a State Government, as a member of the 
Union, can interfere and stop the progress of the General 
Government, by force of her own laws, under any circumstances 
whatever. 

This leads us to inquire into the origin of this Government, 
and the source of its power. Whose agent is it? Is it the crea- 
ture of the State Legislatures, or the creature of the people? 
If the Government of the United States be the agent of the 
State Governments, then they may control it, provided they 
can agree in the manner of controlling it ; if it be the agent of the 
people, then the people alone can control it, restrain it, modify, 
or reform it. It is observable enough, that the doctrine for 



THE NATURE OF THE UNION 339 

which the honorable gentleman contends leads him to the 
necessity of maintaining, not only that this General Govern- 
ment is the creature of the States, but that it is the creature of 
each of the States, severally; so that each may assert the power, 
for itself, of determining whether it acts within the limits of 
its authority. It is the servant of four and twenty masters, of 
different wills and different purposes, and yet bound to obey 
all. This absurdity (for it seems no less) arises from a mis- 
conception as to the origin of this Government and its true 
character. It is, sir, the people's constitution, the people's Gov- 
ernment; made for the people; made by the people; and an- 
swerable to the people. The people of the United States have 
declared that this constitution shall be the supreme law. We 
must either admit the proposition, or dispute their authority. 
The States are, unquestionably, sovereign, so far as their sov- 
ereignty is not affected by this supreme law. But the State 
Legislatures, as political bodies, however sovereign, are yet 
not sovereign over the people. So far as the people have given 
power to the General Government, so far the grant is unques- 
tionably good, and the Government holds of the people, and 
not of the State Governments. We are all agents of the same 
supreme power, the people. The General Government and the 
State Governments derive their authority from the same source. 
Neither can, in relation to the other, be called primary, though 
one is definite and restricted, and the other general and resid- 
uary. The National Government possesses those powers which 
it can be shown the people have conferred on it, and no more. 
All the rest belongs to the State Governments or to the people 
themselves. So far as the people have restrained State sover- 
eignty, by the expression of their will, in the constitution of 
the United States, so far, it must be admitted. State sovereignty 
is effectually controlled. I do not contend that it is, or ought to 
be, controlled farther. The sentiment to which I have referred, 
propounds that State sovereignty is only to be controlled by 
its own "feeling of justice;" that is to say, it is not to be con- 
trolled at all : for one who is to follow his own feelings is under 
no legal control. Now, however men may think this ought to 



340 NATION v. STATE 

be, the fact is, that the people of the United States have chosen 
to impose control on State sovereignties. There are those, 
doubtless, who wish they had been left without restraint; but 
the constitution has ordered the matter differently. To make 
war, for instance, is an exercise of sovereignty; but the consti- 
tution declares that no State shall make war. To coin money 
is another exercise of sovereign power; but no State is at lib- 
erty to coin money. Again, the constitution says that no sover- 
eign State shall be so sovereign as to make a treaty. . . . 

I must now beg to ask, sir, whence is this supposed right of 
the states derived? Where do they find the power to interfere 
with the laws of the Union? Sir, the opinion which the honor- 
able gentleman maintains, is a notion founded in a total mis- 
apprehension, in my judgment, of the origin of this Govern- 
ment, and of the foundation on which it stands. I hold it to 
be a popular Government, erected by the people; those who 
administer it, responsible to the people; and itself capable of 
being amended and modified, just as the people may choose it 
should be. It is as popular, just as truly emanating from the 
people, as the State Governments. It is created for one pur- 
pose; the State Governments for another. It has its own 
powers; they have theirs. There is no more authority with 
them to arrest the operation of a law of Congress, than with 
Congress to arrest the operation of their laws. We are here to 
administer a constitution emanating immediately from the 
people, and trusted, by them, to our administration. It is not 
the creature of the State Governments. . . . 

The people, then, sir, erected this Government. They gave 
it a constitution ; and in that constitution they have enumerated 
the powers which they bestow on it. They have made it a 
limited Government. They have defined its authority. They 
have restrained it to the exercise of such powers as are granted; 
and all others, they declare, are reserved to the States or the 
people. But, sir, they have not stopped here. If they had, they 
would have accomplished but half their work. No definition 
can be so clear as to avoid possibility of doubt; no limitation 
so precise, as to exclude all uncertainty. Who then shall con- 



THE NATURE OF THE UNION 341 

strue this grant of the people? Who shall interpret their will, 
where it may be supposed they have left it doubtful? With 
whom do they repose this ultimate right of deciding on the 
powers of the Government? Sir, they have settled all this in 
the fullest manner. They have left it with the Government 
itself, in its appropriate branches. Sir, the very chief end, the 
main design, for which the whole constitution was framed and 
adopted was, to establish a Government that should not be 
obliged to act through State agency, or depend on State opinion 
and State discretion. The people had had quite enough of that 
kind of government, under the Confederacy. Under that sys- 
tem, the legal action, the application of law to individuals, 
belonged exclusively to the States. Congress could only recom- 
mend; their acts were not of binding force, till the States had 
adopted and sanctioned them? Are we in that condition still? 
Are we yet at the mercy of State discretion, and State con- 
struction? Sir, if we are, then vain will be our attempt to main- 
tain the constitution under which we sit. But, sir, the people 
have wisely provided, in the constitution itself, a proper, suit- 
able mode and tribunal for settling questions of constitutional 
law. There are, in the constitution, grants of powers to Con- 
gress, and restrictions on these powers. There are, also, pro- 
hibitions on the States. Some authority must, therefore, ne- 
cessarily exist, having the ultimate jurisdiction to fix and 
ascertain the. interpretation of these grants, restrictions, and 
prohibitions. The constitution has, itself, pointed out, ordained, 
and established, that authority. How has it accomplished this 
great and essential end? By declaring, sir, that "the constitu- 
tion and the laws of the United States, made in pursuance 
thereof, shall be the supreme law of the land, anything in the 
constitution or laws of any State to the contrary notwith- 
standing." 

This, sir, was the first great step. By this, the supremacy of 
the constitution and laws of the United States is declared. The 
people so will it. No State law is to be valid which comes in 
conflict with the constitution or any law of the United States 
passed in pursuance of it. But who shall decide this question 



342 NATION V. STATE 

of interference? To whom lies the last appeal? This, sir, the 
constitution itself decides also, by declaring "that the judicial 
power shall extend to all cases arising under the constitution 
and laws of the United States." These two provisions, sir, 
cover the whole ground. They are, in truth, the key-stone of the 
arch. With these, it is a constitution; without them, it is a 
confederacy. In pursuance of these clear and express provisions. 
Congress established, at its very first session, in the Judicial 
Act, a mode for carrying them into full effect, and for bringing 
all questions of constitutional power to the final decision of the 
Supreme Court. It then, sir, became a Government. . . . 

If any thing be found in the national constitution, either by 
original provision, or subsequent interpretation, which ought 
not to be in it, the people know how to get rid of it. If any 
construction be established, unacceptable to them, so as to 
become, practically, a part of the constitution, they will amend 
it at their own sovereign pleasure. But while the people choose 
to maintain it as it is ; while they are satisfied with it, and refuse 
to change it, who has given, or who can give, to the State 
Legislatures, a right to alter it, either by interference, construc- 
tion, or otherwise? Gentlemen do not seem to recollect that 
the people have any power to do anything for themselves; they 
imagine there is no safety for them any longer than they are 
under the close guardianship of the State Legislatures. Sir, 
the people have not trusted their safety, in regard to the gen- 
eral constitution, to these hands. They have required other 
security, and taken other bonds. They have chosen to trust 
themselves, first, to the plain words of the instrument, and to 
such construction as the Government itself, in doubtful cases, 
should put on its own powers, under their oaths of office, and 
subject to their responsibility to them: just as the people of a 
State trust their own State Governments with a similar power. 
Secondly, they have reposed their trust in the efficacy of fre- 
quent elections, and in their own power to remove their own 
servants and agents, whenever they see cause. Thirdly, they 
have reposed trust in the Judicial power, which, in order that it 
might be trustworthy, they have made as respectable, as dis- 



THE NATURE OF THE UNION 343 

interested, and as independent as was practicable. Fourthly, 
they have seen fit to rely, in case of necessity, or high exped- 
iency, on their known and admitted power to alter or amend 
the constitution, peaceably and quietly, whenever experience 
shall point out defects or imperfections. And, finally, the 
people of the United States have, at no time, in no way, 
directly or indirectly, authorized any State Legislature to con- 
strue or interpret their high instrument of Government ; much 
less to interfere, by their own power, to arrest its course and 
operation. . . . 



CHAPTER XXXVIII 

FEDERAL CONTROL OF STATE GOVERNMENTS 

The incidents referred to by the Court in the case of Luther v. Borden 
occurred during the Dorr Rebellion in Rhode Island. After the Revolu- 
tion, Rhode Island continued her royal charter as the organic law of the 
Commonwealth. Under this constitution the suffrage was greatly re- 
stricted and much discontent was rife. Repeated efforts were made to 
amend the constitution, but these were invariably defeated by the op- 
position of the legal voters. Finally, a movement was set on foot for a 
convention to be elected by universal suffrage, which should draft a con- 
stitution on democratic lines. The movement so far succeeded that a con- 
vention was held and a constitution drafted. The attempt to put this 
new constitution into operation led to open rebellion. The governor of 
the State then called upon the Federal Government for aid. 

105. President Tyler to the Governor of Rhode Island.^ 

. . . This is the first occasion, so far as the government of a 
State and its people are concerned, on which it has become 
necessary to consider of the propriety of exercising these high 
and most important constitutional and legal functions. By 
a careful consideration of the above recited acts of Congress, 
your Excellency will not fail to see, that no power is vested in 
the Executive of the United States to anticipate insurrection- 
ary movements against the Government of Rhode Island, so 
as to sanction the interposition of the mihtary authority, but 
that there must be an actual insurrection manifested by lawless 
assemblages of the people or otherwise, to whom a proclama- 
tion may be addressed, and who may be required to betake 
themselves to their respective abodes. I have, however, to 
assure your Excellency that should the time arrive, (and my 
fervent prayer is that it may never come,) when an insurrec- 
tion shall exist against the Government of Rhode Island, and 
a requisition shall be made upon the Executive of the United 
States to furnish that protection which is guarantied to each 

1 April II, 1842. Broadside in Yale University Library. 



FEDERAL CONTROL OF STATES 345 

State by the Constitution and laws, I shall not be found to 
shrink from the performance of a duty, which while it would 
be the most painful, is at the same time the most imperative. 
I have also to say that, in such a contingency, the Executive 
could not look into real or supposed defects of the existing 
government, in order to ascertain whether some other plan of 
government proposed for adoption was better suited to the 
wants and more in accordance with the wishes of any portion 
of her citizens. To throw the Executive power of this Govern- 
ment into any such controversy, would be to make the Presi- 
dent the armed arbitrator between the people of the different 
States and their constituted authorities, and might lead to an 
usurped power, dangerous alike to the stability of the State 
Governments and the liberties of the people. 

It will be my duty, on the contrary, to respect the requisi- 
tions of that government which has been recognized as the 
existing Government of the State through all time past, until 
I shall be advised in regular manner, that it has been altered 
and abolished, and another substituted in its place, by legal 
and peaceable proceedings, adopted and pursued by the 
authorities and people of the State. . . . 

106. Memorial of the Democratic Members of the Legislature of 
Rhode Island.^ 

... A large majority of the adult male inhabitants of the 
State of Rhode Island, being citizens of the United States, after 
having long waited in vain for an amendment, through the old 
charter government, of the political institutions of this State, 
in order to bring them into conformity to the standard of 
a democratic republic, to define and regulate the unlimited 
powers of the General Assembly, and to secure to the people 
the right of suffrage and other just rights, of which they had 
long been deprived, in the exercise of their original sovereign 
capacity, did, in December, 1841, rightfully adopt and duly 
ratify a constitution of government, republican in its form and 
character, agreeably to the guaranty of the constitution of the 
^ February i, 1844. House Reports, No. 546. 28 Cong., i Sess. 



346 NATION v. STATE 

United States. The votes given in for this constitution were 
signed by the voters, and have been carefully preserved as a 
standing evidence of the will and action of the people. 

Previously to the election of a government under the people's 
constitution, the President of the United States, issued a letter 
to the Governor, then acting under the charter and laws, in 
which he undertakes to prescribe the mode of proceeding to 
amend the institutions of a State, and declares, in effect, that 
the only valid change must be made by "the authorities and 
people;" placing the "authorities" before the people, making 
their consent and permission requisite to the action of the 
people, and reversing the great fundamental doctrine of our 
democratic repubhc — that all just government is founded in 
the consent of the governed; and that the people are, of course, 
superior to the servants intrusted with temporary power for 
convenience, and in order to do the will of their superiors. 

A majority of the old charter House of Representatives was 
elected by towns containing less than one-third of the popula- 
tion of the State, and the voters in these towns were a third 
of the adult male inhabitants ; so that the people of this State 
were ruled, under the old charter system, by one-ninth part of 
the adult male population, without whose permission, through 
their "authorities" in the General Assembly, according to the 
President, they could never come to the enjoyment of their 
inalienable rights. On the other hand, leaving to each State 
the question who are the people, we contend that a majority 
of the whole people are competent, of themselves, without 
permission, by an authentic act, to change their form of govern- 
ment. 

The undersigned would call your attention to another im- 
portant fact — that there was no mode prescribed by charter, 
law, or usage, in this State, for proceeding to change the 
government and to form a written constitution. All that the 
Assembly could do was to request the people to act; and they 
were at liberty to do so, or not; and could act as well without 
the request, which gave no power, as with it. 

The President, in his letter aforesaid, conveyed the threat 



FEDERAL CONTROL OF STATES 347 

of an intervention with the forces of the United States, in case 
the proceedings of the people to set up their government should 
be persisted in; and by increasing the number of troops at New- 
port, and by other demonstrations within striking distance, 
he gave all the advantages of actual military cooperation 
and invasion to the old charter party and their government, 
and enabled them, with the union of the State treasury and 
the mihtary, to suppress the government elected under the 
people's constitution; to trample upon the rights of our citi- 
zens; maintain martial law over the people, in derogation of all 
law; to impose on the people, while thus under duress, another 
constitution, unjust, restrictive, and anti-republican, adopted 
by less than one-third of the adult male citizens ; and, generally, 
to govern the State as a conquered territory, by despotic laws 
and by the military, and to exercise a political proscription, 
extending through all the relations of society and business, 
such as has never before been witnessed in any State in this 
Union. Many of our citizens have been driven from the State, 
into exile, by the course of the successful party. Large numbers 
have been imprisoned, and about fifteen are now under indict- 
ments for pretended treason and misdemeanors. One of their 
number (Thomas W. Dorr, who was elected Governor of the 
State under the people's constitution) has been kept in close 
prison for more than three months, under a charge of treason ; 
but, in reality, for attempting to maintain, according to his 
oath of office, the people's constitution, and for carrying out 
the doctrines of the declaration of American independence. 

The undersigned beUeve, and affirm, that this interference 
of the President in the affairs of a State, small of territory, easy 
of access, with an imperfect mihtary organization, and incap- 
able, by itself, of resisting a powerful attack from abroad, had 
the effect of overawing the people and of strengthening the 
adverse party; and that it mainly caused the overthrow of the 
people's constitution and government. If the President had let 
us alone, the new government would have been peaceably 
established, and generally acquiesced in. 

The undersigned desire to make their solemn protest against 



348 NATION v. STATE 

the course pursued by the President of the United States. If, 
under the name of suppressing ''insurrections" and repressing 
"domestic violence," the President can thus control the 
States in their internal affairs, and cast the sword into the 
scale of the party which he espouses, he is, in fact, a military 
dictator of all-absorbing powers, to be brought out as occasion 
may require; State rights are a mockery, and the declaration 
of independence is (as it is here asserted to be) "a rhetorical 
flourish," intended for a purpose long since gone by; popular 
sovereignty is a delusion; and we have not, as was supposed 
at the Revolution, escaped from the aristocratic and monarchial 
doctrine of the Old World — that government is sovereign, 
and the people are subjects. . . . 

107. Luther v. Borden} 

Mr. Chief Justice Taney delivered the opinion of the Court: 
This case has arisen out of the unfortunate political differ- 
ences which agitated the people of Rhode Island in 1841 and 
1842. 

It is an action of trespass brought by Martin Luther, the 
plaintiff in error, against Luther M. Borden and other defend- 
ants, in the circuit court of the United States for the district of 
Rhode Island, for breaking and entering the plaintiff's house. 
The defendants justify upon the ground that large numbers of 
men were assembled in different parts of the State for the pur- 
pose of overthrowing the government by military force, and 
were actually levying war upon the State; that, in order to 
defend itself from this insurrection, the State was declared by 
competent authority to be under martial law; that the plaintiff 
was engaged in the insurrection ; and that the defendants, being 
in the military service of the State, by command of their 
superior offfcer, broke and entered the house and searched the 
rooms for the plaintiff, who was supposed to be there concealed, 
in order to arrest him, doing as little damage as possible. The 
plaintiff replied, that the trespass was committed by the 
defendants of their own proper wrong, and without any such 
^ Supreme Court of the United States, 1848. 7 Howard, i. 



FEDERAL CONTROL OF STATES 349 

cause; and upon the issue joined on this repUcation, the parties 
proceeded to trial. . . . The existence and authority of the 
government under which the defendants acted, was called in 
question; and the plaintiff insists, that, before the acts com- 
plained of were committed, that government had been dis- 
placed and annulled by the people of Rhode Island, and that 
the plaintiff was engaged in supporting the lawful authority 
of the State, and the defendants themselves were in arms 
against it. . . . 

The fourth section of the fourth article of the constitution of 
the United States provides that the United States shall guar- 
antee to every State in the Union a republican form of govern- 
ment, and shall protect each of them against invasion ; and on 
the application of the legislature or of the executive (when the 
legislature cannot be convened) against domestic violence. 

Under this article of the constitution it rests with Congress to 
decide what government is the established one in a State. For 
as the United States guarantee to each State a republican 
government, Congress must necessarily decide what govern- 
ment is established in the State before it can determine whether 
it is republican or not. And when the senators and represent- 
atives of a State are admitted into the councils of the Union, 
the authority of the government under which they are ap- 
pointed, as well as its republican character, is recognized by 
the proper constitutional authority. And its decision is bind- 
ing on every other department of the government, and could 
not be questioned in a judicial tribunal. It is true that the 
contest in this case did not last long enough to bring the matter 
to this issue ; and as no senators or representatives were elected 
under the authority of the government of which Mr. Dorr was the 
head. Congress was not called upon to decide the controversy. 
Yet the right to decide is placed there, and not in the courts. 

So, too, as relates to the clause in the above-mentioned 
article of the constitution, providing for cases of domestic 
violence. It rested with Congress, too, to determine upon the 
means proper to be adopted to fulfill this guarantee. They 
.might, if they had deemed it most advisable to do so, have 



550 NATION V. STATE 

placed it in the power of a court to decide when the contin- 
gency had happened which required the federal government 
to interfere. But Congress thought otherwise, and no doubt 
wisely; and by the act of February 28, 1795, provided that, "in 
case of an insurrection in any State against the government 
thereof, it shall be lawful for the President of the United States, 
on application of the legislature of such State or of the executive, 
when the legislature cannot be convened, to call forth such num- 
ber of militia of any other State or States, as may be applied 
for, as he may judge sufficient to suppress such insurrection." 

By this act, the power of deciding whether the exigency had 
arisen upon which the government of the United States is 
bound to interfere, is given to the President. He is to act upon 
the application of the legislature, or of the executive, and 
consequently he must determine what body of men constitute 
the legislature, and who is the governor, before he can act. The 
fact that both parties claim the right to the government, can- 
not alter the case, for both cannot be entitled to it. If there is 
an armed conflict, hke the one of which we are speaking, it is 
a case of domestic violence, and one of the parties must be in 
insurrection against the lawful government. And the President 
must, of necessity, decide which is the government, and which 
party is unlawfully arrayed against it, before he can perform 
the duty imposed upon him by the act of Congress. 

After the President has acted and called out the militia, is a 
circuit court of the United States authorized to inquire whether 
his decision was right? Could the court, while the parties were 
actually contending in arms for the possession of the govern- 
ment, call witnesses before it, and inquire which party repre- 
sented a majority of the people? If it could, then it would 
become the duty of the court (provided it came to the conclu- 
sion that the President had decided incorrectly) to discharge 
those who were arrested or detained by the troops in the serv- 
ice of the United States, or the government which the Presi- 
dent was endeavoring to maintain. If the judicial power ex- 
tends so far, the guarantee contained in the constitution of the 
United States is a guarantee of anarchy, and not of order. Yet 



FEDERAL CONTROL OF STATES 351 

if this right does not reside in the courts when the conflict is 
raging — if the judicial power is, at that time, bound to follow 
the decision of the political, it must be equally bound when the 
contest is over. It cannot, when peace is restored, punish as 
offenses and crimes the acts which it before recognized, and was 
bound to recognize, as lawful. 

It is true that in this case the militia were not called out by 
the President. But upon the application of the governor under 
the charter government, the President recognized him as the 
executive power of the State, and took measures to call out the 
militia to support his authority, if it should be found necessary 
for the general government to interfere; and it is admitted in 
the argument that it was the knowledge of this decision that 
put an end to the armed opposition to the charter government, 
and prevented any further efforts to establish by force the pro- 
posed constitution. The interference of the President, there- 
fore, by announcing his determination, was as effectual as if 
the militia had been assembled under his orders. And it should 
be equally authoritative. For certainly no court of the United 
States, with a knowledge of this decision, would have been 
justified in recognizing the opposing party as the lawful govern- 
ment, or in treating as wrong-doers or insurgents the officers of 
the government which the President had recognized, and was 
prepared to support by an armed force. In the case of foreign 
nations, the government acknowledged by the President is 
always recognized in the courts of justice. And this principle 
has been appHed by the act of Congress to the sovereign States 
of the Union. 

It is said that this power in the President is dangerous to 
liberty, and may be abused. All power may be abused if placed 
in unworthy hands. But it would be difficult, we think, to 
point out any other hands in which this power would be more 
safe, and at the same time equally effectual. When citizens 
of the same State are in arms against each other, and the con- 
stituted authorities unable to execute the laws, the interposi- 
tion of the United States must be prompt, or it is of little 
value. The ordinary course of proceedings in courts of justice 



352 NATION V. STATE 

would be utterly unfit for the crisis. And the elevated office 
of the President, chosen as he is by the people of the United 
States, and the high responsibility he could not fail to feel when 
acting in a case of so much moment, appear to furnish as strong 
safeguards against a wilful abuse of power as human prudence 
and foresight could well provide. At all events, it is conferred 
upon him by the constitution and laws of the United States, 
and must, therefore, be respected and enforced in its judicial 
tribunals. . . . 

Undoubtedly, if the President, in exercising this power, shall 
fall into error, or invade the rights of the people of the State, 
it would be in the power of Congress to apply the proper remedy. 
But the courts must administer the law as they find it. . . . 

Much of the argument on the part of the plaintiff turned 
upon political rights and poHtical questions, upon which the 
court has been urged to express an opinion. We decline doing 
so. The high power has been conferred on this court of passing 
judgment upon the acts of the state sovereignties, and of the 
legislative and executive branches of the federal government, 
and of determining whether they are beyond the limits of power 
marked out for them respectively by the constitution of the 
United States. This tribunal, therefore, should be the last to 
overstep the boundaries which limit its own jurisdiction. And 
while it should always be ready to meet any question confided 
to it by the constitution, it is equally its duty not to pass 
beyond its appropriate sphere of action, and to take care not 
to involve itself in discussions which properly belong to other 
forums. No one, we believe, has ever doubted the proposition, 
that, according to the institutions of this country, the sover- 
eignty in every State resides in the people of the State, and 
that they may alter and change their form of government at 
their own pleasure. But whether they have changed it or not, 
by abolishing an old government, and establishing a new one 
in its place, is a question to be settled by the political power. 
And when that power has decided, the courts are bound to take 
notice of its decision, and to follow it. 

The judgment of the circuit court must, therefore, he affirmed. 



PART SIX. THE NEW DEMOCRACY 
CHAPTER XXXIX 

THE BASIS OF THE NEW DEMOCRACY 

"Constitutions are but paper; society is the substratum of govern- 
ment," said Fisher Ames. The earlier rule of the governing classes was 
possible because society recognized distinctions and the masses were 
deferential. The opening up of the Western lands, however, weakened 
the influence of the old land-owning class and exerted a leveling effect 
upon society, East and West. The demand everywhere for the removal of 
all restrictions upon the suffrage is evidence of the democratization of 
American society. The masses were becoming politically self-conscious 
and insisted upon a direct participation in the work of governing. 

1 08. Social Conditions and their Political Consequences} 

. . . The English laws concerning the transmission of prop- 
erty were abolished in almost all the States at the time of the 
Revolution. The law of entail was so modified as not materially 
to interrupt the free circulation of property. The first genera- 
tion having passed away, estates began to be parcelled out; 
and the change became more and more rapid with the progress 
of time. And now, after a lapse of a Kttle more than sixty 
years, the aspect of society is totally altered ; the families of the 
great landed proprietors are almost all commingled with the 
general mass. In the State of New York, which formerly con- 
tained many of these, there are but two who still keep their 
heads above the stream ; and they must shortly disappear. The 
sons of these opulent citizens have become merchants, lawyers, 
or physicians. Most of them have lapsed into obscurity. The 
last trace of hereditary ranks and distinctions is destroyed, — 
the law of partition has reduced all to one level. 

I do not mean that there is any lack of wealthy individuals 
in the United States; I know of no country, indeed, where the 

^ De Tocqueville, Democracy in America (12th ed., trans, by Reeve), 
I, 63-67 passim. The author records observations which he made in 1831. 



354 THE NEW DEMOCRACY 

love of money has taken a stronger hold on the affections of 
men, and where a profounder contempt is expressed for the 
theory of the permanent equahty of property. But wealth 
\ circulates with inconceivable rapidity, and experience shows 
that it is rare to find two succeeding generations in the full 
enjoyment of it. 

This picture, which may, perhaps, be thought to be over- 
charged, still gives a very imperfect idea of what is taking place 
in the new States of the West and Southwest. At the end of the 
last century, a few bold adventurers began to penetrate into 
the valley of the Mississippi; and the mass of the population 
very soon began to move in that direction: communities un- 
heard of till then suddenly appeared in the desert. States 
whose names were not in existence a few years before, claimed 
their place in the American Union ; and in the Western settle- 
ments we may behold democracy arrived at its utmost limits. 
In these States, founded off-hand, and as it were by chance, 
the inhabitants are but of yesterday. Scarcely known to one 
another, the nearest neighbors are ignorant of each other's 
history. In this part of the American continent, therefore, the 
population has escaped the influence not only of great names 
and great wealth, but even of the natural aristocracy of know- 
ledge and virtue. None are there able to wield that respectable 
power which men willingly grant to the remembrance of a life 
spent in doing good before their eyes. The new States of the 
West are already inhabited; but society has no existence among 
them. ... 

In America, the aristocratic element has always been feeble 
from its birth; and if at the present day it is not actually 
destroyed, it is at any rate so completely disabled, that we can 
scarcely assign to it any degree of influence on the course of 
affairs. 

The democratic principle, on the contrary, has gained so 
much strength by time, by events, and by legislation, as to 
have become not only predominant, but all-powerful. There is 
no family or corporate authority, and it is rare to find even the 
influence of individual character enjoy any durability. 



THE BASIS OF THE NEW DEMOCRACY 355 

America, then, exhibits in her social state an extraordinary 
phenomenon. Men are there seen on a greater equahty in 
point of fortune and intellect, or, in other words, more equal 
in their strength, than in any other country of the world, or in 
any age of which history has preserved the remembrance. . . . 

The political consequences of such a social condition as this 
are easily deducible. 

It is impossible to believe that equality will not eventually 
find its way into the political world, as it does everywhere else. 
To conceive of men remaining forever unequal upon a single 
point, yet equal on all others, is impossible; they must come 
in the end to be equal upon all. 

109. Sovereignty of the People} 

In America, the principle of the sovereignty of the people 
is not either barren or concealed, as it is with some other 
nations ; it is recognized by the customs and proclaimed by the 
laws; it spreads freely, and arrives without impediment at its 
most remote consequences. If there be a country in the world 
where the doctrine of the sovereignty of the people can be 
fairly appreciated, where it can be studied in its application 
to the affairs of society, and where its dangers and its advan- 
tages may be judged, that country is assuredly America. . . . 

At the present day the principle of the sovereignty of the 
people has acquired, in the United States, all the practical 
development which the imagination can conceive. It is unen- 
cumbered by those fictions which are thrown over it in other 
countries, and it appears in every possible form, according to 
the exigency of the occasion. Sometimes the laws are made 
by the people in a body, as at Athens; and sometimes its 
representatives, chosen by universal suffrage, transact busi- 
ness in its name, and under its immediate supervision. 

In some countries, a power exists which, though it is in 
a degree foreign to the social body, directs it, and forces it to 
pursue a certain track. In others, the ruling force is divided, 
being partly within and partly without the ranks of the people. 

^ De Tocqueville, Democracy in America (12th ed.), i, 69-72 passim. 



3S6 THE NEW DEMOCRACY 

But nothing of the kind is to be seen in the United States; 
there society governs itself for itself. All power centres in its 
bosom ; and scarcely an individual is to be met with who would 
venture to conceive, or, still less, to express, the idea of seeking 
it elsewhere. The nation participates in the making of its laws 
by the choice of its legislators, and in the execution of them by 
the choice of the agents of the executive government; it may 
almost be said to govern itself, so feeble and so restricted is the 
share left to the administration, so little do the authorities for- 
get their popular origin and the power from which they eman- 
ate. The people reign in the American political world as the 
Deity does in the universe. They are the cause and the aim of 
all things; everything comes from them, and everything is 
absorbed in them. 

no. Chancellor Kent on Universal Sufrage} 

The senate has hitherto been elected by the farmers of the 
state — by the free and independent lords of the soil, worth at 
least $250 in freehold estate, over and above all debts charged 
thereon. The governor has been chosen by the same electors, 
and we have hitherto elected citizens of elevated rank and 
character. Our assembly has been chosen by freeholders, pos- 
sessing a freehold of the value of $50, or by persons renting a 
tenement of the yearly value of $5, and who have been rated and 
actually paid taxes to the state. By the report before us, we 
propose to annihilate, at one stroke, all those property distinc- 
tions and to bow before the idol of universal suffrage. That 
extreme democratic principle, when applied to the legislative 
and executive departments of government, has been regarded 
with terror, by the wise men of every age, because in every 
European republic, ancient and modern, in which it has been 
tried, it has terminated disastrously, and been productive of 
corruption, injustice, violence, and tyranny. And dare we 
flatter ourselves that we are a pecuHar people, who can run the 
career of history, exempted from the passions which have dis- 

^ New York Convention of 182 1, Reports of the Proceedings and Debates, 
219-22 passim. 



THE BASIS OF THE NEW DEMOCRACY 357 

turbed and corrupted the rest of mankind? If we are like other 
races of men, with similar follies and vices, then I greatly fear 
that our posterity will have reason to deplore in sackcloth and 
ashes, the delusion of the day. 

It is not my purpose at present to interfere with the report 
of the committee, so far as respects the quahfications of electors 
for governor and members of assembly. I shall feel grateful if 
we may be permitted to retain the stability and security of a 
senate, bottomed upon the freehold property of the state. Such 
a body, so constituted, may prove a sheet anchor amidst the 
future factions and storms of the republic. The great leading 
and governing interest of this state, is, at present, the agricul- 
tural; and what madness would it be to commit that interest 
to the winds. The great body of the people, are now the owners 
and actual cultivators of the soil. With that wholesome popu- 
lation we always expect to find moderation, frugality, order, 
honesty, and a due sense of independence, liberty, and justice. 
It is impossible that any people can lose their liberties by in- 
ternal fraud or violence, so long as the country is parcelled out 
among freeholders of moderate possessions, and those free- 
holders have a sure and efficient control in the affairs of the 
government. Their habits, sympathies, and employments, 
necessarily inspire them with a correct spirit of freedom and 
justice ; they are the safest guardians of property and the laws : 
We certainly cannot too highly appreciate the value of the 
agricultural interest: It is the foundation of national wealth 
and power. According to the opinion of her ablest political 
economists, it is the surplus produce of the agriculture of Eng- 
land, that enables her to support her vast body of manufactur- 
ers, her formidable fleets and armies, and the crowds of persons 
engaged in the liberal professions, and the cultivation of the 
various arts. 

Now, sir, I wish to preserve our senate as the representative 
of the landed interest. I wish those who have an interest in the 
soil, to retain the exclusive possession of a branch in the legis- 
lature, as a strong hold in which they may find safety through 
all the vicissitudes which the state may be destined, in the 



358 THE NEW DEMOCRACY 

course of Providence, to experience. I wish them to be always 
enabled to say that their freeholds cannot be taxed without 
their consent. The men of no property, together with the crowds 
of dependants connected with great manufacturing and com- 
mercial establishments, and the motley and undefinable popu- 
lation of crowded ports, may, perhaps, at some future day; 
under skillful management, predominate in the assembly, and 
yet we should be perfectly safe if no laws could pass without 
the free consent of the owners of the soil. That security we at 
present enjoy; and it is that security which I wish to retain. 

The apprehended danger from the experiment of universal 
suffrage applied to the whole legislative department, is no 
dream of the imagination. It is too mighty an excitement for 
the moral constitution of men to endure. The tendency of 
universal suffrage, is to jeopardize the rights of property, and 
the principles of liberty. There is a constant tendency in human 
society, and the history of every age proves it ; there is a tend- 
ency in the poor to covet and to share the plunder of the rich; 
in the debtor to relax or avoid the obligation of contracts; in 
the majority to tyrannize over the minority, and trample down 
their rights; in the indolent and the profligate, to cast the whole 
burthens of society upon the industrious and the virtuous; and 
there is a tendency in ambitious and wicked men, to inflame these 
combustible materials. It requires a vigilant government, and 
a firm administration of justice, to counteract that tendency. 
Thou shalt not covet; thou shalt not steal; are divine injunc- 
tions induced by this miserable depravity of our nature. . . . 

The growth of the city of New- York is enough to startle 
and awaken those who are pursuing the ignis fatuus of uni- 
versal suffrage. . . . 

It is rapidly swelling into the unwieldly population, and 
with the burdensome pauperism, of an European metropolis. 
New- York is destined to become the future London of America ; 
and in less than a century, that city, with the operation of uni- 
versal suffrage, and under skilful direction, will govern this 
state. 

The notion that every man that works a day on the road, 



THE BASIS OF THE NEW DEMOCRACY 359 

or serves an idle hour in the mihtia, is entitled as of right to 
an equal participation in the whole power of the government, 
is most unreasonable, and has no foundation in justice. We 
had better at once discard from the report such a nominal test 
of merit. If such persons have an equal share in one branch of 
' the legislature, it is surely as much as they can in justice or 
policy demand. Society is an association for the protection of 
property as well as of Ufe, and the individual who contributes 
only one cent to the common stock, ought not to have the same 
power and influence in directing the property concerns of the 
partnership, as he who contributes his thousands. He will not 
have the same inducements to care, and diligence, and fidelity. 
His inducements and his temptation would be to divide the 
whole capital upon the principles of an agrarian law. 

Liberty, rightly understood, is an inestimable blessing, but 
liberty without wisdom, and without justice, is no better than 
wild and savage licentiousness. The danger which we have 
hereafter to apprehend, is not the want, but the abuse, of lib- 
erty. We have to apprehend the oppression of minorities, 
and a disposition to encroach on private right — to disturb 
chartered privileges — and to weaken, degrade, and overawe 
the administration of justice; we have to apprehend the es- 
tablishment of unequal, and consequently, unjust systems 
of taxation, and all the mischiefs of a crude and mutable 
legislation. A stable senate, exempted from the influence of 
universal suffrage, will powerfully check these dangerous pro- 
pensities, and such a check becomes the more necessary, since 
this Convention has already determined to withdraw the 
watchful eye of the judicial department from the passage of 
laws. 

We are destined to become a great manufacturing as well 
as commercial state. We have already numerous and prosper- 
ous factories of one kind or another, and one master capitalist 
with his one hundred apprentices, and journeymen, and agents, 
and dependents, will bear down at the polls an equal number 
of farmers of small estates in his vicinity, who cannot safely 
unite for their common defence. Large manufacturing and 



36o THE NEW DEMOCRACY 

mechanical establishments, can act in an instant with the 
unity and efficacy of disciplined troops. It is against such com- 
binations, among others, that I think we ought to give to the 
freeholders, or those who have interest in land, one branch of 
the legislature for their asylum and their comfort. Universal 
suffrage once granted, is granted forever, and never can be 
recalled. There is no retrograde step in the rear of democracy. 
However mischievous the precedent may be in its consequences, 
or however fatal in its effects, universal suffrage never can be 
recalled or checked, but by the strength of the bayonet. We 
stand, therefore, this moment, on the brink of fate, on the very 
edge of the precipice. If we let go our present hold on the 
senate, we commit our proudest hopes and our most precious 
interests to the waves. 

III. Property not the True Basis of Representation} 

When our constitution was framed, the domain of the state 
was in the hands of a few. The proprietors of the great manors 
were almost the only men of great influence; and the landed 
property was deemed worthy of almost exclusive consideration. 
Before the revolution, freeholders only were allowed to exer- 
cise the right of suffrage. The notions of our ancestors, in 
regard to real property, were all derived from England. The 
feudal tenures were universally adopted. The law of primo- 
geniture, by which estates descended to the eldest son, and the 
rule of descent by which the male branches inherited the 
paternal estate, to the exclusion of the female, entails, and 
many other provisions of feudal origin were in force. The 
tendency of this system, it is well understood, was to keep the 
lands of the state in few hands. But since that period, by the 
operation of wiser laws, and by the prevalence of juster prin- 
ciples, an entire revolution has taken place in regard to real 
property. Our laws for regulating descents, and for converting 
entailed estates into fee-simple, have gradually increased the 
number of landholders : Our territory has been rapidly divided 

^ New York Convention of 182 1, Reports of the Proceedings and Debates, 
241-44 passim. 



THE BASIS OF THE NEW DEMOCRACY 361 

and subdivided: And although the landed interest is no longer 
controlled by the influence of a few great proprietors, its ag- 
gregate importance is vastly increased, and almost the whole 
community have become interested in its protection. In New- 
England, the inhabitants, from the earhest period, have en- 
joyed the system which we are progressively attaining to. 
There, the property of the soil has always been in the hands 
of the many. The great bulk of the population are farmers and 
freeholders, yet no provision is incorporated in their constitu- 
tions, excluding those who are not freeholders from a full par- 
ticipation in the right of suffrage. May we not trace the notions 
of the framers of our constitution, respecting the exclusive 
privilege of the freeholders, to the same source from whence 
they derived all their ideas of real property? . . . 

I contend, that by the true principle of out government, 
property, as such, is not the basis of representation. Our com- 
munity is an association of persons — of human beings — not 
a partnership founded on property. The declared object of 
the people of this state in associating, was, to "establish such 
a government as they deemed best calculated to secure the 
rights and hberties of the good people of the state, and most 
conducive to their happiness and safety." Property, it is 
admitted, is one of the rights to be protected and secured ; and 
although the protection of life and liberty is the highest object 
of attention, it is certainly true, that the security of property 
is a most interesting and important object in every free govern- 
ment. Property is essential to our temporal happiness ; and is 
necessarily one of the most interesting subjects of legislation. 
The desire of acquiring property is a universal passion. I 
readily give to property the important place which has been 
assigned to it by the honourable member from Albany (Chan- 
cellor Kent.) To property we are indebted for most of our 
comforts, and for much of our temporal happiness. The num- 
erous religious, moral, and benevolent institutions which are 
everywhere established, owe their existence to wealth ; and 
it is wealth which enables us to make those great internal 
improvements which we have undertaken. Property is only 



362 THE NEW DEMOCRACY 

one of the incidental rights of the person who possesses it; and, 
as such, it must be made secure; but it does not follow, that 
it must therefore be represented specifically in any branch of 
the government. It ought, indeed, to have an influence — and 
it ever will have, when properly enjoyed. So ought talents to 
have an influence. It is certainly as important to have men of 
good talents in your legislature, as to have men of property; 
but you surely would not set up men of talents as a separate 
order, and give them exclusive privileges. 

The truth is, that both wealth and talents will ever have a 
great influence; and without the aid of exclusive privileges, 
you will always find the influence of both wealth and talents 
predominant in our halls of legislation. 



CHAPTER XL 

CONSTITUTIONAL CHANGES IN THE STATES 

The constitutions of the new States, which were formed out of the pub- 
lic domain during the two decades following the War of i8i 2, bear witness 
to the democratic tendencies of frontier communities. In contrast to the 
constitutions of the Revolutionary period, two tendencies appear: first, 
a disposition to remove all obstacles from the path of popular sovereignty; 
and secondly, a determination to strengthen and expand the executive at 
the expense of the legislative power. The reaction of Western democracy 
upon the older States led to similar changes in their constitutions. By 
the middle of the century a third tendency appears : to make the judiciary 
also dependent upon the popular will by election. 

112. Veto Power of the Governor} 

In a free representative government there is a strong and 
natural tendency to excessive legislation. That department 
must be composed of a very numerous body of men. In general 
we may hope, that they will possess sound and upright inten- 
tions; but a majority of them will probably possess little expe- 
rience in framing laws: and the nature of man, and our own 
experience shew, that men, suddenly elevated to power, have 
a natural proneness to use their power immoderately. Our 
state, in common with others, has from time to time had many 
bold and rude reformers ; who see evils and disorders all around 
them, in whatever does not accord with their own narrow views 
of public policy; and who often apply remedies with so unskil- 
ful a hand, and with so little wisdom and circumspection, that 
in curing one evil, they create many others. Such an inexperi- 
enced lawgiver has his eye intently fixed on some particular 
mischief which he supposes to exist, and then, with a strong 
hand he extirpates that evil; but in doing so he often throws 
down the fences erected for the security of private rights. 
Almost every man who comes to the legislature seems to sup- 

^ Judge Piatt in the New York Convention of 182 1, Reports of Proceed- 
ings and Debates, 52-53. 



364 THE NEW DEMOCRACY 

pose that he is bound to do something; and this propensity is 
so strong, that it is often excited into a passion and a rage. All 
change in the public laws of the state is in itself an evil. It 
renders the rule of action for a time unknown or uncertain. 
The stability of laws. inspires confidence; and the success of all 
our prospective plans in the various business of life must 
essentially depend on that stability. Fickle caprice is the law of 
a tyrant's will; and in proportion as our laws are unstable, they 
partake of that characteristic feature of tyranny. 

Besides, sir, it is not to be disguised, that we are at all times 
exposed to the arts and designs of ambitious demagogues, to 
selfish intriguers, who speculate on the public bounty, through 
means of party favouritism ; and to that esprit de corps, which 
under strong party excitement, often infests with contagious 
influence, all who are within its immediate atmosphere. The 
pride of our nature is often humbled, when we see men, who in 
their private life and character are deserving of all our confi- 
dence and esteem; yet, when associated in large assemblies, 
and inflamed with party zeal, are induced to commit intem- 
perate acts of outrage and violence under the false pleas of 
public necessity, or of retahation and self-defence — acts, of 
which any one of them, in a moment of calm reflection, would 
blush to think himself capable. 

These, sir, are some of the infirmities and vices inherent in 
our form of government ; and so long as man continues imper- 
fect and depraved, these evils must ever attend the many 
blessings which we enjoy under our happy republic. But while 
this truth admonishes that perfection is unattainable in any 
human device; it solemnly warns us on this occasion, to retain 
or provide every suitable check and guard against those evils ; so 
far as human sagacity and wisdom can discern and prevent them. 

On this subject, sir, it is important to realize the distinction 
between the actual powers of legislation, and a mere negative 
veto. The power of making or altering the law ought unques- 
tionably to be confided to the two houses of the legislature 
exclusively. That power expands itself to all objects not for- 
bidden by the constitution, or the fundamental and universal 



CONSTITUTIONAL CHANGES IN STATES 365 

principles of justice. — Such vast powers are obviously liable 
to great abuse; and if abused, the injurious effects are perman- 
ent; and in a great measure incurable. If the legislature pass 
a law which is unconstitutional, the judicial tribunals, if the 
case be regularly presented to them, will declare it null and 
void. But in many cases, a long time elapses between the 
passing of the act, and the judicial interpretation of it; and 
what, let me ask, is the condition of the people during that 
interval? Who, in such a case, can safely regulate his conduct? 
In many cases a person is compelled to act in reference to such a 
statute, while he is necessarily involved in doubt as to its validity. 

But where the legislature abuse their discretion, on ques- 
tions of expediency merely, the mischief is often still worse. 
In all cases of private acts, which comprize three fourths of our 
statute book, the evil of an improvident act is incurable, 
because it usually vests private rights in individuals or corpora- 
tions which no power under the government can afterwards 
repeal or annul. No matter how unequal, unwise, or inconven- 
ient, such laws must be carried into effect. Fieri non debet; 
factum valet. 

But in regard to the evils which might by possibility flow 
from the improper exercise of the qualified veto on the legisla- 
ture, they are very limited in their effects, and of far less 
dangerous character. The council of revision, or the executive 
holding this check, can originate no bill, nor make nor alter 
any law. The effect of the objections where they prevail, can 
only produce the result of suspending the legislative will of the 
two houses. And the worst consequence which can ordinarily 
happen, is, that the people must remain under the law as it 
stood; until the voice of the people, through their new repre- 
sentatives, shall produce a change. 

113. The Governor as "the Man of the Peopled' ^ 

I have long been sensible, in common with a large class of 
the community, that we have too much legislation. It renders 

^ Ogden Edwards in the New York Convention of 1821, Reports of 
Proceedings and Debates, 60-61. 



366 THE NEW DEMOCRACY 

the law unstable, and it requires a good lawyer to keep pace 
with the construction it receives. All that the governor can 
say, when vested with the powers contemplated by the com- 
mittee, is — stay your hand. If gentlemen are afraid that 
we shall not have law enough, let them go to the lawyers' 
shelves and tables that groan beneath the burden. An erro- 
neous idea seems to have prevailed in relation to the powers 
and origin of the governor. Who is he? and by whom is he 
appointed? Does he derive his authority from the king of 
Great Britain? Is he an usurper? If so, let us unite to depose 
him. But, sir, he is the man of the people — elected by their 
suffrage, and identified with their interests. He is a watchful 
sentinel to guard us from evil, and a zealous friend to admonish 
us of error. Much has been said respecting the necessity of 
keeping separate the different branches of the government. I 
yield a cordial acquiescence to the principle. But if we content 
ourselves with parchment regulations — if nothing more 
effectual is done than to authorize the governor to recommend 
a reconsideration of the bills that are passed, it is easy to per- 
ceive that the weaker power will be trodden down by the 
stronger, and that the executive has become a cypher before 
the representatives of the people. On this, as on all other 
subjects, however, I have but one object in view. That object 
is to endeavour that the agents of the public are so guarded, 
checked, and controled, that the people may lie down and rest 
in security, with the consciousness that their rights will be pro- 
tected. 

114. Political Power of the Judiciary} 

The Americans have retained these three distinguishing 
characteristics of the judicial power: an American judge can 
only pronounce a decision when litigation has arisen, he is 
conversant only with special cases, and he cannot act until the 
cause has been duly brought before the court. His position is, 
therefore, perfectly similar to that of the magistrates of other 
nations; and yet he is invested with immense poHtical power. 

^ De Tocqueville, Democraoy in America (12th ed.), i, 125-30. 



CONSTITUTIONAL CHANGES IN STATES 367 

How comes that about? If the sphere of his authority and his 
means of action are the same as those of other judges, whence 
does he derive a power which they do not possess? The cause 
of this difference lies in the simple fact, that the Americans 
have acknowledged the right of the judges to found their 
decisions on the Constitution rather than on the laws. In other 
words, they have not permitted them to apply such laws as may 
appear to them to be unconstitutional. . . . 

Whenever a law which the judge holds to be unconstitu- 
tional is invoked in a tribunal of the United States, he may 
refuse to admit it as a rule; this power is the only one which is 
pecuHar to the American magistrate, but it gives rise to 
immense political influence. In truth, few laws can escape the 
searching analysis of the judicial power for any length of time, 
for there are few which are not prejudicial to some private 
interest or other, and none which may not be brought before a 
court of justice by the choice of parties, or by the necessity 
of the case. But as soon as a judge has refused to apply any 
given law in a case, that law immediately loses a portion of its 
moral force. Those to whom it is prejudicial learn that means ex- 
ist of overcoming its authority; and similar suits are multiplied, 
until it becomes powerless. The alternative, then, is, that the 
people must alter the constitution, or the legislature must repeal 
the law. The political power which the Americans have intrusted 
to their courts of justice is therefore immense; but the evils of 
this power are considerably diminished by the impossibility of 
attacking the laws except through the courts of justice. . . . 

Within these limits, the power vested in the American courts 
of justice, of pronouncing a statute to be unconstitutional, 
forms one of the most powerful barriers which has ever been 
devised against the tyranny of poHtical assemblies. 

115. Popular Election of the Judiciary. ^ 

Now, sir, this question of electing judges by the people 
seems to have taken some gentlemen by surprise. I recollect 

^ Debates and Proceedings of the Maryland Reform Convention (185 1), 
II, 461-64 passim. 



368 THE NEW DEMOCRACY 

the time very well when it was considered a radical proposition. 
I recollect the time very well when, perhaps, you could not 
find one man in twenty who thought that the judges should be 
elected by the people. But I have lived to see the day when I 
find not over one in twenty who is opposed to it. If there is 
any subject at all upon which, more than any other, the pop- 
ular mind has undergone a change, in my judgment, it is this 
in regard to the election of judges by the people. . . . 

Sir, the question is one simply of expediency — whether the 
people shall be reunited to their original rights or not? Whether 
the power shall be given to them, not for the first time, for this 
I think was settled by the Revolution, but as a reversionary 
right to which they have just claims of inheritance. They do 
not ask for power which they never possessed before, for they 
had it by the Bill of Rights, of 1776, and by the Constitution 
of 1776, they granted it to subordinate agents. That Constitu- 
tion being about to expire, these powers necessarily went to 
the people, their original and rightful owners. In the great 
trial which was then to be made — this experiment of self- 
government — the people were induced to part with this 
power. They incorporated as a provision in the Constitution 
of 1776, that the Governor and the Council should have the 
appointment of judges, chancellor, and all judicial officers. 
Sir, this was a grant of power — a relinquishment of their own 
rights and interests to mere subordinate agents. . . . 

We have confided to you, the Governor and Council, or you 
the Governor and Senate, this power of appointment for^ise, 
wholesome, and good purposes. We expected that in the execu- 
tion of this power, you would look alone to the common good 
of the people of the State. How have you exercised the power? 
In the appointment of judges, have you made the interests of 
the people your great polar star to guide you? No. It has 
become a mere political machine in the hands of the Governor 
and his friends, the Governor and the Senate, and their friends. 
It is made a great political engine, by which the interests of a 
large portion of the people of the State have been sacrificed 
for the elevation of others. You have not always looked alone 



CONSTITUTIONAL CHANGES IN STATES 369 

to the legal attainments and uprightness of the men you have 
put upon the bench. You have not always looked to their 
integrity of character, their honesty, their capabihty, and the 
standing which they ought to have by reason of their virtues ; 
you have selected, in many cases, mere partisan adherents to 
certain political creeds. I am now using language which the 
people have a right to use to those subordinate agents, who 
have heretofore had the exercise of this power. . . . 

I will trust the people, because I believe that they will select 
wise and good and honest judges. To fill the station of a judge, 
we want a man who has a clear head and an honest heart. I 
care not whether he be a Demosthenes or a Cicero — whether 
his imagination can soar among the clouds, or play with the 
thunders, and storms, and lightnings, or not. I want a man of 
good, sound sense, calm, deliberate judgment, and, above all, 
a man of integrity. These are the men that the people will 
elect for their judges — these are not the men that the Gov- 
ernor and Senate have usually looked for. . . . 

If we refuse to confide the power of appointment to the 
people, we violate the great and fundamental principle which 
we have professed to venerate from our cradles up to manhood 
— I mean the right of the people to govern themselves — a 
principle to be forever held sacred by every true friend of 
republican government. 



CHAPTER XLI 

PRESIDENT AND CONGRESS: THE VETO POWER 

Before the administration of Andrew Jackson, the veto power had 
been exercised only nine times. The earher Presidents, as the Federalist 
anticipated, were disposed to use the veto with caution, not wishing to 
put themselves into opposition to the well-considered purposes of Con- 
gress, except in those instances when Congress seemed to have exceeded 
its constitutional powers. President Jackson was deterred by no such 
scruples. By his veto messages, notably by his veto of the Bank Bill, he 
put himself squarely athwart the will of Congress. Not once only, but 
twelve times he exercised what one of his cabinet officers styled "the 
people's tribunative prerogative." The protest of Henry Clay against 
the veto was occasioned by President Tyler's rejection of successive bills 
for the establishment of a new national bank. There is no evidence that 
Clay's proposed amendment of the Constitution commanded popular 
support. On the contrary. President Polk's vigorous assertion of the repre- 
sentative character of the presidential office indicates that the public 
mind had acquiesced in the precedent set by Jackson. 

ii6. President Jackson^ s Bank Veto} 

... A Bank of the United States is, in many respects, con- 
venient for the Government, and useful to the people. Enter- 
taining this opinion, and deeply impressed with the belief that 
some of the powers and privileges possessed by the existing 
bank are unauthorized by the constitution, subversive of the 
rights of the States, and dangerous to the Hberties of the people, 
I felt it my duty, at an early period of my administration, to 
call the attention of Congress to the practicability of organiz- 
ing an institution combining all its advantages, and obviating 
these objections. I sincerely regret, that, in the act before me, 
I can perceive none of those modifications of the bank charter 
which are necessary, in my opinion, to make it compatible with 
justice, with sound policy, or with the constitution of our 
country. ... 

The modifications of the existing charter, proposed by this 

^ Richardson, Messages and Papers of the Presidents, ii, 576-91 passim. 
July 10, 1832. 



PRESIDENT AND CONGRESS 371 

act, are not such, in my view, as make it consistent with the 
rights of the States or the Kberties of the people. The quahfi- 
cation of the right of the bank to hold real estate, the limitation 
of its power to estabhsh branches, and the power reserved to 
Congress to forbid the circulation of small notes, are restric- 
tions comparatively of little value or importance. All the ob- 
jectionable principles of the existing corporation, and most of 
its odious features, are retained without alleviation. . . . 

Is there no danger to our liberty and independence in a 
bank, that, in its nature, has so little to bind it to our country? 
The President of the bank has told us that most of the State 
banks exist by its forbearance. Should its influence become 
concentred, as it may under the operation of such an act as 
this, in the hands of a self-elected directory, whose interests 
are identified with those of the foreign stockholder, will there 
not be cause to tremble for the purity of our elections in peace, 
and for the independence of our country in war? Their power 
would be great whenever they might choose to exert it ; but if 
this monopoly were regularly renewed every fifteen or twenty 
years, on terms proposed by themselves, they might seldom in 
peace put forth their strength to influence elections, or control 
the affairs of the nation. But if any private citizen or public 
functionary should interpose to curtail its powers, or prevent a 
renewal of its privileges, it cannot be doubted that he would 
be made to feel its influence. 

Should the stock of the bank principally pass into the hands- 
of the subjects of a foreign country, and we should unfortu- 
nately become involved in a war with that country, what 
would be our condition? Of the course which would be pur- 
sued by a bank almost wholly owned by the subjects of a for- 
eign power, and managed by those whose interests, if not 
affections, would run in the same direction, there can be no 
doubt. All its operations within, would be in aid of the hostile 
fleets and armies without. Controlling our currency, receiving 
our public moneys, and holding thousands of our citizens in 
dependance, it would be more formidable and dangerous than 
the naval and miHtary power of the enemy. . . . 



372 THE NEW DEMOCRACY 

It is maintained by the advocates of the bank that its con- 
stitutionahty in all its features ought to be considered as settled 
by precedent, and by the decision of the Supreme Court. To 
this conclusion I cannot assent. Mere precedent is a dangerous 
source of authority, and should not be regarded as deciding 
questions of constitutional power, except where the acqui- 
escence of the people and the States can be considered as well 
settled. So far from this being the case on this subject, an argu- 
ment against the bank might be based on precedent. One 
Congress, in 1791, decided in favor of a bank; another, in 181 1, 
decided against it. One Congress, in 18 15, decided against a 
bank; another, in 18 16, decided in its favor. Prior to the pre- 
sent Congress, therefore, the precedents drawn from that source 
were equal. If we resort to the States, the expressions of legis- 
lative, judicial, and executive opinions against the bank, have 
been, probably, to those in its favor, as four to one. There is 
nothing in precedent, therefore, which, if its authority were 
admitted, ought to weigh in favor of the act before me. 

If the opinion of the Supreme Court covered the whole 

ground of this act, it ought not to control the co-ordinate 

authorities of this Government. The Congress, the Executive, 

and the Court, must each for itself be guided by its own opinion 

of the constitution. Each pubhc officer, who takes an oath to 

support the constitution, swears that he will support it as he 

understands it, and not as it is understood by others. It is as 

much the duty of the House of Representatives, of the Senate, 

and of the President, to decide upon the constitutionahty of 

any bill or resolution which may be presented to them for 

passage or approval, as it is of the Supreme Judges when it 

may be brought before them for judicial decision. The opinion 

of the judges has no more authority over Congress, than the 

opinion of Congress has over the judges; and, on that point, 

the President is independent of both. The authority of the 

Supreme Court must not, therefore, be permitted to control 

the Congress or the Executive when acting in their legislative 

capacities, but to have only such influence as the force of their 

reasoning may deserve. 



PRESIDENT AND CONGRESS 373 

But, in the case relied upon, the Supreme Court have not 
decided that all the features of this corporation are compatible 
with the constitution. It is true that the court have said that 
the law incorporating the bank is a constitutional exercise of 
power by Congress. But, taking into view the whole opinion 
of the court, and the reasoning by which they have come to 
that conclusion, I understand them to have decided that, inas- 
much as a bank is an appropriate means for carrying into effect 
the enumerated powers of the General Government, therefore 
the law incorporating it is in accordance with that provision of 
the constitution which declares that Congress shall have power 
"to make all laws which shall be necessary and proper for carry- 
ing those powers into execution." Having satisfied themselves 
that the word "necessary" in the constitution, means "/jeecf/M/," 
"requisite," "essential," "conducive to," and that "a bank" is a 
convenient, a useful, and essential instrument, in the prosecu- 
tion of the Government's "fiscal operations," they conclude, 
that to "use one must be within the discretion of Congress," 
and that "the act to incorporate the Bank of the United States 
is a law made in pursuance of the constitution": "but," say 
they, "where the law is not prohibited, and is really calculated to 
effect any of the objects entrusted to the Government, to undertake 
here to inquire into the degree of its necessity, would be to pass the 
line which circumscribes the judicial department, and to tread on 
legislative ground" 

The principle here affirmed is, that the "degree of its neces- 
sity, "involving all the details of a banking institution, is a ques- 
tion exclusively for legislative consideration. A bank is con- 
stitutional; but it is the province of the Legislature to determine 
whether this or that particular power, privilege, or exemption, 
is "necessary and proper" to enable the bank to discharge its 
duties to the Government; and, from their decision, there is no 
appeal to the courts of justice. Under the decision of the 
Supreme Court, therefore, it is the exclusive province of Con- 
gress and the President to decide whether the particular fea- 
tures of this act are necessary and proper in order to enable the 
bank to perform conveniently and efficiently the public duties 



374 THE NEW DEMOCRACY 

assigned to it as a fiscal agent, and therefore constitutional ; or 
unnecessary and improper, and therefore unconstitutional. . . . 

. . . That a Bank of the United States, competent to all the 
duties which may be required by the Government, might be so 
organized as not to infringe on our own delegated powers, or 
the reserved rights of the States, I do not entertain a doubt. 
Had the Executive been called upon to furnish the project of 
such an institution, the duty would have been cheerfully per- 
formed. In the absence of such a call, it is obviously proper 
that he should confine himself to pointing out those prominent 
features in the act presented, which, in his opinion, make it 
incompatible with the constitution and sound policy. A general 
discussion will now take place, eliciting new light, and settling 
important principles ; and a new Congress, elected in the midst 
of such discussion, and furnishing an equal representation of 
the people according to the last census, will bear to the Capitol 
the verdict of public opinion, and, I doubt not, bring this 
important question to a satisfactory result. 

Under such circumstances, the bank comes forward and asks 
a renewal of its charter for a term of fifteen years, upon condi- 
tions which not only operate as a gratuity to the stockholders 
of many millions of dollars, but will sanction any abuses and 
legalize any encroachments. . . . 

The bank is professedly established as an agent of the Execu- 
tive branches of the Government, and its constitutionality is 
maintained on that ground. Neither upon the propriety of 
present action, nor upon the provisions of this act, was the 
Executive consulted. It has had no opportunity to say that it 
neither needs nor wants an agent clothed with such powers, 
and favored by such exemptions. There is nothing in its legiti- 
mate functions which make it necessary or proper. Whatever 
interest or influence, whether public or private, has given birth 
to this act, it cannot be found either in the wishes or necessi- 
ties of the Executive Department, by which present action is 
deemed premature, and the powers conferred upon its agent 
not only unnecessary, but dangerous to the Government and 
country. ... 



PRESIDENT AND CONGRESS 375 

I have now done my duty to my country. If sustained by 
my fellow-citizens, I shall be grateful and happy; if not, I shall 
find, in the motives which impel me, ample grounds for con- 
tentment and peace. In the difficulties which surround us, 
and the dangers which threaten our institutions, there is cause 
for neither dismay nor alarm. For relief and deliverance let 
us firmly rely on that kind Providence which, I am sure, 
watches with peculiar care over the destinies of our Republic, 
and on the intelhgence and wisdom of our countrymen. 
Through His abundant goodness, and their patriotic devotion, 
our liberty and Union will be preserved. 

117. Henry Clay on the Veto Power} 

... On principle, certainly, the executive ought to have no 
agency in the formation of laws. Laws were the will of the 
nation authoritatively expressed. The carr3dng of those laws 
into effect was the duty which ought to be assigned to the 
executive, and this ought to be his sole duty, for it was an 
axiom in all free governments that the three great depart- 
ments, legislative, executive, and judicial, should ever be kept 
separate and distinct. And a government was the most perfect 
when most in conformity with this fundamental principle. 
To give, then, to the executive, any agency in the ascertain- 
ment and expression of the will of the nation, was so far a 
violation of this great leading principle. But it was said that 
the framers of our Constitution had, nevertheless, been induced 
to place the veto upon the list of executive powers, by two con- 
siderations; the first was a desire to protect the executive 
against the power of the legislative branch, and the other was 
a prudent wish to guard the country against the injurious 
effects of crude and hasty legislation. But where was the neces- 
sity to protect the executive against the legislative depart- 
ment? Were not both bound by their solemn oaths, to support 
the Constitution? The judiciary had no veto. If the argument 
was a sound one, why was not the same protection extended 

^ In the Senate, January 24, 1842. Mallory, Life and Speeches of Henry 
Clay, II, 519-28 passim. 



376 THE NEW DEMOCRACY 

to the judiciary also? Was there not ample security against 
the encroachments of the legislative power, in the absence of 
the veto? First, there was the solemn oath of office; then there 
was the authority of the judiciary; then there was the respon- 
sibility of individual members to the people, and this respon- 
sibility continually kept up by a frequent appeal to the people; 
and, lastly, there was -the ultimate conflict of the President and 
the legislature before the grand tribunal of the nation itself, 
in case of any attempt, by the legislature, to deprive him of the 
rightful exercise of his authority. . . . 

He should confine himself to what might be called a mere 
numerical estimate of the amount of the veto power, and he 
would make this estimate by taking the numbers of the two 
houses of Congress, as those houses now stood. The Senate at 
present consisted of fifty- two members; of that number a 
majority consisted of twenty-seven; two thirds amounted to 
thirty-six. Supposing a law to be passed by a bare majority, 
(and in all great and contested questions bills were wont to be 
passed by very small majorities,) then there would be in its 
favor twenty-seven votes. The bill was submitted to the 
President, and returned by him with his veto. The force of the 
presidential veto could not be overturned but by thirty-six 
votes. Here, then, the veto in the hands of the President was 
equal in its effect upon legislation to nine senatorial votes. Mr. 
Clay dismissed all considerations of influence derived from his 
office, all the glitter and eclat of the President's high station, 
and all the persuasion directed to the interests of men by his 
vast patronage; all this he laid out of view, and looked merely 
at the numerical fact, that in the Senate the veto was equal 
to nine votes. And now in regard to the other branch. The 
House of Representatives consisted of two hundred and forty- 
two members; to constitute a majority required one hundred 
and twenty- two ; two thirds amounted to one hundred and sixty- 
two. By looking at this difference, it would be seen, as in the 
case of the Senate, that the executive veto amounted in effect 
tq forty representative votes. . . . 

He contended, that practically, and in effect, the veto, 



PRESIDENT AND CONGRESS ' 377 

armed with such a quahfication as now accompanied it in the 
Constitution, was neither more nor less than an absolute 
power. It was virtually an unqualified negative on the legisla- 
tion of Congress. Not a solitary instance had yet occurred in 
which the veto once exerted had ever been overruled, nor was 
such a case likely to happen. In most questions where the veto 
could be exerted, there was always a considerable difference of 
opinion both in the country and in Congress as to the bill 
which had been passed. In such circumstances, when all the 
personal influence, the official patronage, and the reasoning 
which accompanied the veto, were added to the substantial 
weight of the veto itself, every man acquainted with human 
nature would be ready to admit, that if nothing could set it 
aside but a vote of two thirds in both houses, it might as well 
have been made absolute at once. ... 

. . . The veto power professed to act only while the legisla- 
ture acted; then it was to terminate. Its effect was to be, to 
consummate legislation. The officer of government, in whose 
hands the Constitution placed a power so formidable, was 
supposed in theory to remain profoundly silent as to the passage 
of great measures of public policy, until they were presented 
to him in a finished form for his approbation and sanction. 

This was the theory; but Mr. Clay contended, that really 
and in practice this veto power drew after it the power of initi- 
ating laws, and in its effect must ultimately amount to confer- 
ring on the executive the entire legislative power of the govern- 
ment. With the power to initiate and the power to consummate 
legislation, to give vitality and vigor to every law, or to strike 
it dead at his pleasure, the President must ultimately become 
the ruler of the nation. . . . 

The actual condition of a President of the United States did 
not very widely differ from that of the monarchs of the old 
world. Here, too, the chief magistrate occupied an isolated 
station, where the voice of his country and the cries of its dis- 
tress could not reach his ear. He, too, was surrounded by a 
cordon of favorites, flatterers, and fawns. Isolated in this dis- 
trict, with no embarrassments himself, the echoes of the pub- 



378 * THE NEW DEMOCRACY 

lie distress, if they reached his ear at all, reached it with a 
faint and feeble sound, being obstructed by those who sur- 
rounded his person, and approached him only to flatter. Facts 
were boldly denied, and all complaints attributed to a factious 
spirit. Now, he would ask, was a man thus separated, and thus 
surrounded, more likely to know the real sufferings, wants, and 
wishes of his countrymen, than the two hundred and forty-two 
men in the other house, or the fifty-two men in this house, 
who came up here directly from their bosom, who shared in all 
their sufferings, who felt their wants, participated in their 
wishes, and sympathized with all their sorrows? That was the 
true question of the veto power. Now he thought if these 
things were duly considered, (and he spoke not of this or of 
that incumbent of the office, but of the circumstances of every 
one who filled it,) it must be admitted, by every candid mind, 
that the responsibility was great of a man who should under- 
take, on his own private opinion, to resist and suppress the 
will of the nation, constitutionally expressed. It was a power 
not merely to annul the national will, as lawfully uttered by 
its own chosen representatives; but the power to initiate legis- 
lation itself, and to substitute for the will of the nation an alien 
will, neither of the nation, nor of its representatives. ... 

ii8. President Polk on the Exercise of the Veto Power} 

. . . The preservation of the Constitution from infraction 
is the President's highest duty. He is bound to discharge that 
duty at whatever hazard of incurring the displeasure of those 
who may differ with him in opinion. He is bound to discharge 
it as well by his obHgations to the people who have clothed 
him with his exalted trust as by his oath of of&ce, which he may 
not disregard. Nor are the obligations of the President in any 
degree lessened by the prevalence of views different from his 
own in one or both Houses of Congress. It is not alone hasty 
and inconsiderate legislation that he is required to check; but 
if at any time Congress shall, after apparently full deliberation, 

1 Annual Message, December 5, 1848. Richardson, Messages and Papers 
of the Presidents, iv, 662-65 passim. 



PRESIDENT AND CONGRESS 379 

resolve on measures which he deems subversive of the Consti- 
tution or of the vital interests of the country, it is his solemn 
duty to stand in the breach and resist them. The President 
is bound to approve or disapprove every bill which passes 
Congress and is presented to him for his signature. The Con- 
stitution makes this his duty, and he can not escape it if he 
would. . . . 

Any attempt to coerce the President to yield his sanction to 
measures which he can not approve would be a violation of the 
spirit of the Constitution, palpable and flagrant, and if success- 
ful would break down the independence of the executive de- 
partment and make the President, elected by the people and 
clothed by the Constitution with power to defend their rights, 
the mere instrument of a majority of Congress. . . . 

The people, by the ' Constitution, have commanded the 
President, as much as they have commanded the. legislative 
branch of the Government, to execute their will. They have 
said to him in the Constitution, which they require he shall 
take a solemn oath to support, that if Congress pass any bill 
which he can not approve "he shall return it to the House in 
which it originated with his objections." In withholding from 
it his approval and signature he is executing the will of the 
people, constitutionally expressed, as much as the Congress 
that passed it. . . . 

If it be said that the Representatives in the popular branch 
of Congress are chosen directly by the people, it is answered, 
the people elect the President. If both Houses represent the 
States and the people, so does the President. The President 
represents in the executive department the whole people of the 
United States, as each member of the legislative department 
represents portions of them. . . . 

In the exercise of the power of the veto the President is 
responsible not only to an enlightened public opinion, but to 
the people of the whole Union, who elected him, as the repre- 
sentatives in the legislative branches who differ with him in 
opinion are responsible to the people of particular States or 
districts, who compose their respective constituencies. . . . 



CHAPTER XLII 

THE PRESIDENT AS THE DIRECT REPRESENTATIVE OF 
THE PEOPLE 

In directing the Secretary of the Treasury to remove the pubhc deposits 
from the Bank of the United States, President Jackson assumed a power 
of control over that officer which was promptly challenged as unprece- 
dented by his opponents. The reasons actuating the President are set 
forth in the paper read to the Cabinet. It is important to note that the 
directive power thus asserted has made the President the effective head 
of the national administration. The course of President Jackson drew 
the heaviest fire which Whig leaders could direct upon him. After three 
months of cannonading, the Senate resolved "That the President, in the 
late executive proceedings in relation to the public revenue, has assumed 
upon himself authority and power not conferred by the Constitution and 
laws, but in derogation of both." President Jackson's reply, commonly 
known as the "Protest," is one of the most remarkable messages ever sent 
to the Senate. 

119. President Jackson's Paper read to the Cabinet} 

. . . The power of the secretary of the treasury over the 
deposites is unqualified. The provision that he shall report his 
reasons to congress, is no limitation. Had it not been inserted, 
he would have .been responsible to congress, had he made a 
removal for any other than good reasons, and his responsibility 
now ceases, upon the rendition of sufficient ones to congress. 
The only object of the provision, is to make his reasons acces- 
sible to congress, and enable that body the more readily to 
judge of their soundness and purity, and thereupon to make 
such further provision by law as the legislative power may 
think proper in relation to the deposite of the public money. 
Those reasons may be very diversified. It was asserted by the 
secretary of the treasury without contradiction, as early as 
1817, that he had power "to control the proceedings" of the 
bank of the United States at any moment, "by changing the 
deposites to the state banks," should it pursue an illiberal 
1 September 18, 1833. Niles's Register, xlv, 73-77 passim. 



PRESIDENT AS REPRESENTATIVE 381 

course towards those institutions; that "the secretary of the 
treasury will always be disposed to support the credit of the 
state banks, and will invariably direct transfers from the 
deposites of the public money in aid of their legitimate exer- 
tions to maintain their credit," and he asserted a right to em- 
ploy the state banks when the bank of the United States should 
refuse to receive on deposite the notes of such state banks as 
the pubHc interest required should be received in payment of 
the public dues. In several instances he did transfer the public 
deposites to state banks, in the immediate vicinity of branches, 
for reasons connected only with the safety of those banks, the 
pubhc convenience and the interests of the treasury. 

If it was lawful for Mr. Crawford, the secretary of the treas- 
ury at that time, to act on these principles, it will be difficult 
to discover any sound reason against the application of similar 
principles in still stronger cases. And it is a matter of surprise 
that a power which, in the infancy of the bank, was freely 
asserted as one of the ordinary and familiar duties of the sec- 
retary of the treasury, should now be gravely questioned, and 
attempts made to excite and alarm the public mind as if some 
new and unheard of power was about to be usurped by the 
executive branch of the government. . . . 

It is for the wisdom of Congress to decide upon the best 
substitute to be adopted in the place of the bank of the United 
States ; and the president would have felt himself relieved from 
a heavy and painful responsibility if in the charter of the bank, 
congress had reserved to itself the power of directing at its 
pleasure, the public money to be elsewhere deposited, and had 
not devolved that power exclusively on one of the executive 
departments. . . . But as the president presumes that the 
charter to the bank is to be considered as a contract on the part 
of the government, it is not now in the power of congress to 
disregard its stipulations; and by the terms of that contract 
the public money is to be deposited in the bank, during the 
continuance of its charter, unless the secretary of the treasury 
shall otherwise direct. Unless, therefore, the secretary of the 
treasury first acts, congress have no power over the subject. 



382 THE NEW DEMOCRACY 

for they cannot add a new clause to the charter or strike one 
out of it without the consent of the bank; and consequently 
the public money must remain in that institution to the last 
hour of its existence, unless the secretary of the treasury shall 
remove it at an earher day. 

The responsibility is thus thrown upon the executive branch 
of the government, of deciding how long before the expiration 
of the charter, the public interests will require the deposites 
to be placed elsewhere. . . . and it being the duty of one of 
the executive departments to decide in the first instance, sub- 
ject to the future action of the legislative power, whether the 
public deposites shall remain in the bank of the United States 
until the end of its existence, or be withdrawn some time before, 
the president has felt himself bound to examine the question 
carefully and deliberately in order to make up his judgment 
on the subject: and in his opinion the near approach of the 
termination of the charter, and the public considerations here- 
tofore mentioned, are of themselves amply sufficient to justify 
the removal of the deposites without reference to the conduct 
of the bank, or their safety in its keeping. . . . 

In conclusion the president must be permitted to remark 
that he looks upon the pending question as of higher considera- 
tion than the mere transfer of a sum of money from one bank 
to another. Its decision may affect the character of our govern- 
ment for ages to come. Should the bank be suffered longer to 
use the public moneys, in the accomplishment of its purposes, 
with the proofs of its faithlessness and corruption before our 
eyes, the patriotic among our citizens will despair of success in 
strugghng against its power; and we shall be responsible for 
entailing it upon our country forever. Viewing it as a question 
of transcendant importance, both in the principles and conse- 
quences it involves, the president could not, in justice to the 
responsibility which he owes to the country, refrain from 
pressing upon the secretary of the treasury, his view of the 
considerations which impel to immediate action. Upon him 
has been devolved by the constitution and the suffrages of the 
American people, the duty of superintending the operation 



PRESIDENT AS REPRESENTATIVE 383 

of the executive departments of the government, and seeing 
that the laws are faithfully executed. In the performance of 
this high trust, it is his undoubted right to express to those 
whom the laws and his own choice have made his associates in 
the administration of the government, his opinion of their 
duties under circumstances as they arise. It is this right which 
he now exercises. Far be it from him to expect or require, that 
any member of the cabinet should, at his request, order or dicta- 
tion, do any act which he believes unlawful, or in his con- 
science condemns. From them and from his fellow citizens in 
general, he desires only that aid and support, which their 
reason approves and their conscience sanctions. 

In the remarks he has made on this all important question, 
he trusts the secretary of the treasury will see only the frank 
and respectful declarations of the opinions which the president 
has formed on a measure of great national interest, deeply 
affecting the character and usefulness of his administration; 
and not a spirit of dictation, which the president would be as 
careful to avoid, as ready to resist. Happy will he be, if the 
facts now disclosed produce uniformity of opinion and unity of 
action among the members of the administration. 

The president again repeats that he begs his cabinet to con- 
sider the proposed measure as his own, in the support of which 
he shall require no one of them to make a sacrifice of opinion 
or principle. Its responsibility has been assumed, after the 
most mature deliberation and reflection, as necessary to pre- 
serve the morals of the people, the freedom of the press and 
the purity of the elective franchise, without which all will unite 
in saying that the blood and treasure expended by our fore- 
fathers in the estabHshment of our happy system of govern- 
ment will have been vain and fruitless. Under these convictions, 
he feels that a measure so important to the American people 
cannot be commenced too soon; and he therefore names the 
first day of October next, as a period proper for the change 
of the deposites, or sooner, provided the necessary arrange- 
ments with the state banks can be made. 



384 THE NEW DEMOCRACY 

120. President Jackson's ^' Protest.^^'^ 

Under the constitution of the United States, the powers and 
functions of the various departments of the federal govern- 
ment, and their responsibiHties for violation or neglect of duty, 
are clearly defined or result by necessary inference. The legis- 
lative power subject to the qualified negative of the president, 
is vested in the congress of the United States, composed of the 
senate and house of representatives. The executive power is 
vested exclusively in the president, except that in the conclu- 
sion of treaties and in certain appointments to office, he is to 
act with the advice and consent of the senate. The judicial 
power is vested exclusively in the supreme and other courts of 
the U. States, except in cases of impeachment, for which pur- 
pose the accusatory power is vested in the house of representa- 
tives, and that of hearing and determining in the senate. But 
although for the special purposes which have been mentioned, 
there is an occasional intermixture of the powers of the different 
departments, yet with these exceptions, each of the three great 
departments is independent of the others in its sphere of action ; 
and when it deviates from that sphere is not responsible to the 
others, further than it is expressly made so in the constitution. 
In every other respect, each of them is the coequal of the other 
two, and all are the servants of the American people, without 
power or right to control or censure each other in the service 
of their common superior, save only in the manner and to the 
degree which that superior has prescribed. . . . 

Tested by these principles, the resolution of the senate is 
wholly unauthorised by the constitution, and in derogation of 
its entire spirit. It assumes that a single branch of the legisla- 
tive department may for the purposes of a public censure, and 
without any view to legislation or impeachment, take up, con- 
sider, and decide upon, the official acts of the executive. But 
in no part of the constitution is the president subjected to 
any such responsibility; and in no part of that instrument is 

1 Message to the Senate, April 15, 1834. Richardson, Messages and 
Papers of the Presidents, ni, 69-93. 



PRESIDENT AS REPRESENTATIVE 385 

any such power conferred on either branch of the legisla- 
ture. . . . 

The resolution in question was introduced, discussed and 
passed, not as a joint, but as a separate resolution. It asserts 
no legislative power, proposes no legislative action ; and neither 
possesses the form nor any of the attributes of a legislative 
measure. It does not appear to have been entertained or passed, 
with any view or expectation of its issuing in a law or joint 
resolution, or in the repeal of any law or joint resolution, or in 
any other legislative action. 

Whilst wanting both the form and substance of a legislative 
measure, it is equally manifest, that the resolution was not 
justified by any of the executive powers conferred on the sen- 
ate. These powers relate exclusively to the consideration of 
treaties and nominations to office; and they are exercised in se- 
cret session, and with closed doors. This resolution does not apply 
to any treaty or nomination, and was passed in a public session. 

Nor does this proceeding in any way belong to that class of 
incidental resolutions which relate to the officers of the senate, 
to their chamber, and other appurtenances, or to subjects of 
order, and other matters of the like nature — in all which 
either house may lawfully proceed without any co-operation 
with the other, or with the president. 

On the contrary the whole phraseology and sense of the 
resolution seem to be judicial. Its essence, true character, and 
only practical effect, are to be found in the conduct which it 
charges upon the president, and in the judgment which it 
pronounces on that conduct. The resolution therefore, though 
discussed and adopted by the senate in its legislative capac- 
ity, is, in its office, and in all its characteristics, essentially judi- 
cial. . . . 

The resolution above quoted, charges in substance that in 
certain proceedings relating to the public revenue, the president 
has usurped authority and power not conferred upon him by the 
constitution and laws, and that in doing so he violated both. 
Any such act constitutes a high crime — one of the highest, 
indeed, which the president can commit — a crime which 



386 THE NEW DEMOCRACY 

justly exposes him to impeachment by the house of representa- 
tives, and upon due conviction, to removal from office, and to 
the complete and immutable disfranchisement prescribed by 
the constitution. 

The resolution, then, was in substance an impeachment of 
the president ; and in its passage amounts to a declaration by a 
majority of the senate, that he is guilty of an impeachable 
offence. As such it is spread upon the journals of the senate — 
published to the nation and to the world — made part of our 
enduring archives — and incorporated in the history of the 
age. The punishment of removal from office and future dis- 
qualification, does not, it is true, follow this decision; nor would 
it have followed the like decision, if the regular forms of pro- 
ceeding had been pursued, because the requisite number did 
not concur in the result. But the moral influence of a solemn 
declaration, by a majority of the senate, that the accused is 
guilty of the offence charged upon him, has been as effectually 
secured, as if the like declaration had been made upon an 
impeachment expressed in the same terms. Indeed, a greater 
practical effect has been gained, because the votes given for 
the resolution, though not sufficient to authorise a judgment 
of guilty on an impeachment, were numerous enough to carry 
that resolution. 

That the resolution does not expressly allege that the 
assumption of power and authority, which it condemns, was 
intentional and corrupt, is no answer to the preceding view of 
its character and effect. The act thus condemned, necessarily 
implies volition and design in the individual to whom it is 
imputed, and being unlawful in its character, the legal conclu- 
sion is, that it was prompted by improper motives, and com- 
mitted with an unlawful intent. The charge is not of a mistake 
in the exercise of supposed powers, but of the assumption of 
powers not conferred by the constitution and laws, but in dero- 
gation of both, and nothing is suggested to excuse or palliate 
the turpitude of the act. In the absence of any such excuse, or 
palliation, there is room only for one inference; and that is, 
that the intent was unlawful and corrupt. Besides, the resolu- 



PRESIDENT AS REPRESENTATIVE 387 

tion not only contains no mitigating suggestion, but on the 
contrary, it holds up the act complained of as justly obnoxious 
to censure and reprobation: and thus as distinctly stamps it 
with impurity of motive, as if the strongest epithets had been 
used. 

The president of the United States, therefore, has been by a 
majority of his constitutional triers, accused and found guilty 
of an impeachable offence: but in no part of this proceeding 
have the directions of the constitution been observed. . . . 

The honest differences of opinion which occasionally exist 
between the senate and the president, in regard to matters in 
which both are obliged to participate, are sufficiently embar- 
rassing. But if the course recently adopted by the senate shall 
hereafter be frequently pursued, it is not only obvious that the 
harmony of the relations between the president and the senate 
will be destroyed, but that other and graver effects will ulti- 
mately ensue. If the censures of the senate be submitted to by 
the president, the confidence of the people in his abihty and 
virtue, and the character and usefulness of his administration, 
will soon be at an end, and the real power of the government 
will fall into the hands of a body, holding their offices for long 
terms, not elected by the people, and not to them directly re- 
sponsible. If, on the other hand, the illegal censures of the 
senate should be resisted by the president, collisions and angry 
controversies might ensue, discreditable in their progress, and 
in the end compelling the people to adopt the conclusion, 
either that their chief magistrate was unworthy of their respect, 
or that the senate was chargeable with calumny and injustice. 
Either of these results would impair public confidence in the 
perfection of the system, and lead to serious alterations of its 
frame work, or to the practical abandonment of some of its 
provisions. 

The influence of such proceedings on the other departments 
of the government, and more especially on the states, could 
not fail to be extensively pernicious. When the judges in the 
last resort of official misconduct themselves overleap the 
bounds of their authority, as prescribed by the constitution, 



388 THE NEW DEMOCRACY 

what general disregard of its provisions might not their example 
be expected to produce? And who does not perceive that such 
contempt of the federal constitution, by one of its most im- 
portant departments, would hold out the strongest temptation 
to resistance on the part of the state sovereignties, whenever 
they shall suppose their just rights to have been invaded? Thus 
all the independent departments of the government, and the 
states which compose our confederated union, instead of attend- 
ing to their appropriate duties, and leaving those who may' 
offend, to be reclaimed or punished in the manner pointed 
out in the constitution, would fall to mutual crimination and 
recrimination, and give to the people confusion and anarchy, 
instead of order and law; until at length some form of aristo- 
cratic power would be established on the ruins of the constitu- 
tion, or the states be broken into separate communities. 

Far be it from me to charge, or to insinuate, that the present 
senate of the United States intend, in the most distant way, to 
encourage such a result. It is not of their motives or designs, 
but only of the tendency of their acts, that it is my duty to 
speak. It is, if possible, to make senators themselves sensible 
of the danger which lurks under the precedent set in their reso- 
lution, and at any rate to perform my duty, as the responsible 
head of one of the coequal departments of the government, 
that I have been compelled to point out the consequences to 
which the discussion and passage of the resolution may lead, 
if the tendency of the measure be not checked in its inception. 

It is due to the high trust with which I have been charged ; 
to those who may be called to succeed me in it ; to the represent- 
atives of the people, whose constitutional prerogative has been 
unlawfully assumed; to the people of the states; and to the 
constitution they have established; that I should not permit 
its provisions to be broken down by such an attack on the execu- 
tive department, without at least some effort "to preserve, 
protect, and defend them." With this view, and for the reasons 
which have been stated, I do hereby solemnly protest 
against the aforementioned proceedings of the senate, as un- 
authorized by the constitution; contrary to its spirit and to 



PRESIDENT AS REPRESENTATIVE 389 

several of its express provisions; subversive of that distribu- 
tion of the powers of government which it has ordained and 
established ; destructive of the checks and safeguards by which 
those powers were intended, on the one hand, to be controlled, 
and on the other to be protected ; and calculated by their imme- 
diate and collateral effects, by their character and tendency, 
to concentrate in the hands of a body not directly amenable 
to the people, a degree of influence and power dangerous to 
their liberties, and fatal to the constitution of their choice. . . . 

121. Daniel Webster on the "Protest.''^ 

. . . The first proposition, then, which the Protest asserts, 
in regard to the President's powers as executive magistrate, 
is, that, the general duty being imposed on him by the Consti- 
tution, of taking care that the laws be faithfully executed, he 
thereby becomes himself responsible for the conduct of every 
person employed in the government; "for the entire action," 
as the paper expresses it, "of the executive department." 
This, Sir, is very dangerous logic. I reject the inference alto- 
gether. No such responsibility, nor any thing like it, follows 
from the general provision of the Constitution, making it his 
duty to see the laws executed. If it did, we should have, in 
fact, but one officer in the whole government. The President 
would be everybody. And the Protest assumes to the Presi- 
dent this whole responsibility for every other ofi&cer, for the 
very purpose of making the President everybody, of annihil- 
ating every thing like independence, responsibility, or char- 
acter, in all other public agents. The whole responsibility is 
assumed, in order that it may be more plausibly argued that 
all officers of government are, not agents of the law, but the 
President's agents, and therefore responsible to him alone. If 
he be responsible for the conduct of all officers, and they be 
responsible to him only, then it may be maintained that such 
officers are but his own agents, his substitutes, his deputies. 
The first thing to be done, therefore, is to assume the respon- 

^ In the Senate, May 7, 1834. Works of Daniel Webster (1851), iv, 
136-45 passim. 



390 THE NEW DEMOCRACY 

sibility for all ; and this, you will perceive, Sir, is done, in the 
fullest manner, in the passages which I have read. Having 
thus assumed for the President the entire responsibihty of the 
whole government, the Protest advances boldly to its conclu- 
sion, and claims, at once, absolute power over all individuals 
in office, as being merely the President's agents. This is the 
language: "The whole executive power being vested in the 
President, who is responsible for its exercise, it is a necessary 
consequence that he should have a right to employ agents of 
his own choice to aid him in the performance of his duties, and 
to discharge them when he is no longer willing to be responsible 
for their acts." 

This, Sir, completes the work. This handsomely rounds off 
the whole executive system of executive authority. First, the 
President has the whole responsibihty; and then, being thus 
responsible for all, he has, and ought to have, the whole power. 
We have heard of political units, and our American executive, 
as here represented, is indeed a unit. We have a charmingly 
simple government ! Instead of many officers, in different de- 
partments, each having appropriate duties and each responsible 
for his own duties, we are so fortunate as to have to deal with 
but one officer. The President carries on the government; all 
the rest are but sub-contractors. Sir, whatever name we give 
him, we have but One Executive Officer. A Briareus sits in the 
centre of our system, and with his hundred hands touches 
every thing, moves every thing, controls every thing. I ask. 
Sir, Is this repubhcanism? Is this a government of laws? Is 
this legal responsibility? . . . 

Sir, it exceeds human belief that any man should put senti- 
ments such as this paper contains into a public communication 
frftm the President to the Senate. They are sentiments which 
give us all one master. The Protest asserts an absolute right 
to remove all persons from office at pleasure; and for what 
reason? Because they are incompetent? Because they are 
incapable? Because they are remiss, negligent, or inattentive? 
No, Sir; these are not the reasons. But he may discharge them, 
one and all, simply because "he is no longer wilhng to be 



PRESIDENT AS REPRESENTATIVE 391 

responsible for their acts"! It insists on an absolute right in 
the President to direct and control every act of every officer of 
the government, except the judges. It asserts this right of 
direct control over and over again. The President may go 
into the treasury, among the auditors and comptrollers, and 
direct them how to settle every man's account; what abate- 
ments to make from one, what additions to another. He may 
go into the custom-house, among collectors and appraisers, and 
may control estimates, reductions, and appraisements. It is 
true that these officers are sworn to discharge the duties of 
their respective offices honestly and fairly, according to their 
own best abilities ; it is true, that many of them are liable to 
indictment for official misconduct, and others responsible, in 
suits of individuals, for damages and penalties, if such official 
misconduct be proved; but notwithstanding all this, the Pro- 
test avers that all these officers are but the President's agents ; 
that they are but aiding him in the discharge of his duties; that 
he is responsible for their conduct, and that they are removable 
at his will and pleasure. And it is under this view of his own 
authority that the President calls the Secretaries his Sec- 
retaries, not once only, but repeatedly. . . . 

Connected, Sir, with the idea of this airy and unreal respon- 
sibiKty to the public is another sentiment, which of late we 
hear frequently expressed; and that is, that the President is the 
direct representative of the American people. This is declared 
in the Protest in so many words. "The President," it says, "is 
the direct representative of the American people." Now, Sir, 
this is not the language of the Constitution. The Constitution 
nowhere calls him the representative of the American people; 
still less, their direct representative. It could not do so with 
the least propriety. He is not chosen directly by the people, 
but by a body of electors, some of whom are chosen by the 
people, and some of whom are appointed by the State legisla- 
ture. Where, then, is the authority for saying that the Presid- 
ent is the direct representative of the people? The Constitution 
calls the members of the other house Representatives, and de- 
clares that they shall be chosen by the people; and there are no 



392 THE NEW DEMOCRACY 

other direct or immediate representatives of the people in this 
government. The Constitution denominates the President sim- 
ply the President of the United States; it points out the com- 
plex mode of electing him, defines his powers and duties, and 
imposes limits and restraints on his authority. With these 
powers and duties, and under these restraints, he becomes, 
when chosen. President of the United States. That is his char- 
acter, and the denomination of his oflSce. How is it, then, that, 
on this official character, thus cautiously created, limited, and 
defined, he is to engraft another and a very imposing charac- 
ter, namely, the character of the direct representative of the 
American people? I hold this. Sir, to be mere assumption, 
and dangerous assumption. If he is the representative of all 
the American people, he is the only representative which they 
all have. Nobody else presumes to represent all the people. 
And if he may be allowed to consider himself as the Sole Re- 
presentative Of All The American People, and is to act under 
no other responsibility than such as I have already described, 
then I say. Sir, that the government (I will not say the people) 
has already a master. . . . 



CHAPTER XLIII 

PRESIDENTIAL INITIATIVE IN DETERMINING 
FOREIGN POLICY 

Although President Polk's war message is substantially correct in its 
account of Slidell's mission, certain important details are slurred over and 
somewhat blurred. It is noteworthy that, though Slidell was dispatched 
to Mexico in November, his appointment was not confirmed by the Sen- 
ate until January 20; that on January 12 a dispatch was received from 
Slidell which made it probable, if not certain, that he would not be 
received by the Mexican Government; and that on the following day the 
President sent orders to General Taylor to advance to the Rio Grande. 
It is difiiciolt to resist the conclusion that the President desired to force 
the hand of Mexico and that the alleged threatened invasion of Texas by 
Mexican forces was no more imminent then than weeks before. These 
and other neglected considerations gave point to Stephens's attack upon 
"Polk the Mendacious." The following extracts from presidential mes- 
sages indicate the novel powers assumed by the President during the 
interesting process of "conquering a peace." 

122. President PoWs War Message} 

. . . The strong desire to establish peace with Mexico on lib- 
eral and honorable terms, and the readiness of this government 
to regulate and adjust our boundary, and other causes of differ- 
ence with that power, on such fair and equitable principles as 
would lead to permanent relations of the most friendly nature, 
induced me in September last to seek the reopening of diplo- 
matic relations between the two countries. . . . An envoy of 
the United States repaired to Mexico, with full powers to 
adjust every existing difference. . . . 

It now becomes my duty to state more in detail the origin, 
progress, and failure of that mission. In pursuance of the in- 
structions given in September last, an inquiry was made, on the 
13th of October, 1845, in the most friendly terms, through our 
consul in Mexico, of the minister for foreign affairs, whether the 
Mexican government ''would receive an envoy from the United 

^ Richardson, Messages and Papers of the Presidents, iv, 437-43 passim. 



394 THE NEW DEMOCRACY 

States intrusted with full powers to adjust all the questions in 
dispute between the two governments;" with the assurance 
that "should the answer be in the af&rmative, such an envoy 
would be immediately despatched to Mexico." The Mexican 
minister, on the 15th of October, gave an affirmative answer to 
this inquiry, requesting, at the same time, that our naval force 
at Vera Cruz might be withdrawn, lest its continued presence 
might assume the appearance of menace and coercion pending 
the negotiations. This force was immediately withdrawn. On 
the loth of November, 1845, Mr. John Slidell, of Louisiana, 
was commissioned by me as envoy extraordinary and minister 
plenipotentiary of the United States to Mexico, and was in- 
trusted with full powers to adjust both the questions of the 
Texas boundary and of indemnification to our citizens. The 
redress of the wrongs of our citizens naturally and inseparably 
blended itself with the question of boundary. The settlement 
of the one question, in any correct view of the subject, involves 
that of the other. I could not, for a moment, entertain the idea 
that the claims of our much injured and long suffering citizens, 
many of which had existed for more than twenty years, should 
be postponed, or separated from the settlement of the boundary 
question. 

[After setting forth Slidell's endeavors to secure recognition 
from Herrera and upon his overthrow, from Paredes, the mes- 
sage continues :] 

Under these circumstances, Mr. Slidell, in obedience to my 
direction, addressed a note to the Mexican minister of foreign 
relations, under date of the ist of March last, asking to be re- 
ceived by that government in the diplomatic character to which 
he had been appointed. This minister, in his reply under date 
of the 12th of March, reiterated the arguments of his predeces- 
sor, and, in terms that may be considered as giving just grounds 
of offence to the government and people of the United States, 
denied the application of Mr. Slidell. Nothing, therefore, re- 
mained for our envoy but to demand his passports, and return 
to his own country. . . . 

In my message at the commencement of the present session, 



PRESIDENT AND FOREIGN POLICY 395 

I informed you that, upon the earnest appeal both of the con- 
gress and convention of Texas, I had ordered an efficient miU- 
tary force to take a position "between the Nueces and the Del 
Norte." This had become necessary, to meet a threatened 
invasion of Texas by the Mexican forces, for which extensive 
military preparations had been made. The invasion was threat- 
ened solely because Texas had determined, in accordance with 
a solemn resolution of the Congress of the United States, to 
annex herself to our Union; and, under these circumstances, 
it was plainly our duty to extend our protection over her citi- 
zens and soil. 

This force was concentrated at Corpus Christi, and remained 
there until after I had received such information from Mexico 
as rendered it probable, if not certain, that the Mexican govern- 
ment would refuse to receive our envoy. 

Meantime Texas, by the final action of our Congress, had 
become an integral part of our Union. The Congress of Texas, 
by its act of December 19, 1836, had declared the Rio del Norte 
to be the boundary of that republic. Its jurisdiction had been 
extended and exercised beyond the Nueces. The country 
between that river and the Del Norte had been represented in 
the congress and in the convention of Texas ; had thus taken 
part in the act of annexation itself ; and is now included within 
one of our congressional districts. Our own Congress had, 
moreover, with great unanimity, by the act approved Decem- 
ber 31, 1845, recognised the country beyond the Nueces as a 
part of our territory, by including it within our own revenue 
system; and a revenue ofiicer, to reside within that district, 
has been appointed, by and with the advice and consent of the 
senate. It became, therefore, of urgent necessity to provide for 
the defence of that portion of our country. Accordingly, on 
the 13th of January last, instructions were issued to the general 
in command of these troops to occupy the left bank of the Del 
Norte, ... 

The army moved from Corpus Christi on the nth of March, 
and on the 28th of that month arrived on the left bank of the 
Del Norte, opposite to Matamoras, where it encamped on a 



396 THE NEW DEMOCRACY 

commanding position, which has since been strengthened by 
the erection of field works. A depot has also been established 
at Point Isabel, near the Brazos Santiago, thirty miles in rear 
of the encampment. The selection of his position was neces- 
sarily confided to the judgment of the general in command. 

The Mexican forces at Matamoras assumed a belligerent 
attitude, and, on the 12th of April, General Ampudia, then in 
command, notified General Taylor to break up his camp within 
twenty-four hours, and to retire beyond the Nueces river, and, 
in the event of his failure to comply with these demands, 
announced that arms, and arms alone, must decide the ques- 
tion. But no open act of hostility was committed until the 24th 
of April. On that- day. General Arista, who had succeeded to 
the command of the Mexican forces, communicated to General 
Taylor that ''he considered hostilities commenced, and should 
prosecute them." A party of dragoons, of sixty- three men and 
ofl&cers, were on the same day despatched from the American 
camp up the Rio del Norte, on its left bank, to ascertain whe- 
ther the Mexican troops had crossed, or were preparing to 
cross, the river, "became engaged with a large body of these 
troops, and, after a short affair, in which some sixteen were 
killed and wounded, appear to have been surrounded and com- 
pelled to surrender." 

The grievous wrongs perpetrated by Mexico upon our citi- 
zens throughout a long period of years remain unredressed; 
and solemn treaties, pledging her public faith for this redress, 
have been disregarded. A government either unable or unwill- 
ing to enforce the execution of such treaties, fails to perform 
one of its plainest duties. 

Our commerce with Mexico has been almost annihilated. It 
was formerly highly beneficial to both nations; but our mer- 
chants have been deterred from prosecuting it by the system 
of outrage and extortion which the Mexican authorities have 
pursued against them, whilst their appeals through their own 
government for indemnity have been made in vain. Our for- 
bearance has gone to such an extreme as to be mistaken in its 
character. Had we acted with vigor in repelling the insults and 



PRESIDENT AND FOREIGN POLICY 397 

redressing the injuries inflicted by Mexico at the commence- 
ment, we should doubtless have escaped all the difficulties in 
which we are now involved. 

Instead of this, however, we have been exerting our best 
efforts to propitiate her good-will. Upon the pretext that 
Texas, a nation as independent as herself, thought proper to 
unite its destinies with our own, she has affected to believe that 
we have severed her rightful territory, and in official proclama- 
tions and manifestoes has repeatedly threatened to make war 
upon us, for the purpose of reconquering Texas. In the mean- 
time, we have tried every effort at reconciliation. The cup of 
forbearance had been exhausted, even before the recent in- 
formation from the frontier of the Del Norte. But now, after 
reiterated menaces, Mexico has passed the boundary of the 
United States, has invaded our territory, and shed American 
blood upon the American soil. She has proclaimed that hostili- 
ties have commenced, and that the two nations are now at war. 

As war exists, and, notwithstanding all our efforts to avoid it, 
exists by the act of Mexico herself, we are called upon by every 
consideration of duty and patriotism to vindicate with decision 
the honor, the rights, and the interests of our country. . . . 

In further vindication of our rights, and defence of our terri- 
tory, I invoke the prompt action of Congress to recognise the 
existence of the war, and to place at the disposition of the 
Executive the means of prosecuting the war with vigor, and 
thus hastening the restoration of peace. . . . 

12 T,. A Whig View of the Origin of the War} 

My first proposition is, that the immediate cause of hostili- 
ties between our army and the Mexican forces, was the advance 
movement from Corpus Christi, upon the Nueces river, to 
Matamoras, upon the Rio Grande or Del Norte. And, to sus- 
tain this, I need but refer to the history of the case, given by 
the President himself in the documents accompanying his 
message to the House, when he asked us to recognize a state of 

^ Speech of Representative Stephens in the House, June i6, 1846. 
Cleveland, Alexander H. Stephens, 304-16 passim. 



398 THE NEW DEMOCRACY 

war with Mexico ; a singular request, by-the-by, for the Presi- 
dent to make, when the Constitution gives Congress the sole 
power to declare war. Perhaps some gentlemen may suppose 
that that clause in the Constitution simply means that when 
the President gets us into war, it is the business of Congress 
then to make it known — to declare it — or recognize the fact. 
This, however, is not my understanding of it. Congress alone 
has the right and power to engage in war. The President has 
the right to repel hostilities; but not by his policy with other 
nations to bring on and involve the country in a war without 
consultation with Congress. . . . 

... I come now to say, what I fearlessly assert, that the 
President had no right, no power, legally, to order the miHtary 
occupation of the disputed territory on the Rio Grande without 
authority from Congress. He had no right or power to send the 
army beyond that country over which Texas had estabHshed 
her jurisdiction. The boundary between Texas and Mexico — 
I mean Texas as an independent State after her revolution — 
was never settled. Before the revolution the river Nueces was 
the southern boundary of the department of Texas. Between 
that river and the Rio Grande lay the districts of Tamaulipas, 
Coahuila, and others. During and after the revolution, a por- 
tion of this country on the south of the Nueces, about Corpus 
Christi, went with Texas and adhered to the new government; 
the other portion, lying on the Rio Grande, adhered to the old 
government; and though Texas, after her declaration, defined 
her boundary to be the Rio Grande, yet she never successfully 
established her jurisdiction to that extent. Between Corpus 
Christi and the Mexican settlements on the Rio Grande is an 
immense desert or waste, where nobody lives. The first settle- 
ments to the south of that unoccupied region are on the Rio 
Grande, or near it, and have continued subject to the laws of 
Mexico. The people are Mexicans or Spaniards. . . . 

But it is useless to multiply authority upon this point. All 
this was well known at the time of the passage of the resolution 
of annexation; and hence the resolution was guarded so as to 
cover only so much territory as was ^'properly included within, 



PRESIDENT AND FOREIGN POLICY 399 

and rightfully belonged to the Republic of Texas, ^^ reserving the 
question of boundary to be settled and adjusted between this 
government and Mexico by negotiation, and not by arms; and 
Congress positively refused to pass any measure of that sort 
which fixed the boundary at the Rio Grande or Del Norte; and 
I venture to say that no resolution so fixing the boundary 
could have passed this or the other House. And now what I 
have got to say is this : Congress having failed to establish a 
boundary in that quarter, the President could not undertake 
to do it. The limits or boundaries of a country can be fijced in 
two ways only: one is by negotiation, and the other is by 
the sword. The President by himself can do neither. He may 
make the initiative in the former case; but Congress can alone 
constitutionally draw the sword for any purpose. I grant, if 
Mexico would not negotiate, would not treat, would not come 
to any understanding in a friendly manner where the dividing 
line should be, where their jurisdiction should end and ours 
commence, that we would then have a right to make a limit 
for ourselves, and a right, by force of arms, to establish that 
limit or line. But, sir, this is a right that Congress only can 
constitutionally exercise. The President cannot do it. . . , 

. , . But some one asks me what was the President to do? 
How was he to know where to stop, as there was no fixed line? 
I answer, his duty was a plain one. It was to keep the army 
within that portion of the territory which "rightfully belonged 
to Texas," or over which she had established her jurisdiction 
and supremacy, where her laws extended and were enforced, 
and where the people acknowledged her government. Whether 
that was east or west of the Nueces made no difference. But 
he had no authority to order them beyond such limits. . . . 

124. President Polk to Congress} 

It is well known that the only indemnity which it is in the 
power of Mexico to make in satisfaction of the just and long- 
deferred claims of our citizens against her and the only means 

1 December 7, 1847. Richardson, Messages and Papers of the Presidents, 
IV, 536-38. 



400 THE NEW DEMOCRACY 

by which she can reimburse the United States for the expenses 
of the war is a cession to the United States of a portion of her 
territory. Mexico has no money to pay, and no other means 
of making the required indemnity. If we refuse this, we can 
obtain nothing else. To reject indemnity by refusing to accept 
a cession of territory would be to abandon all our just demands, 
and to wage the war, bearing all its expenses, without a pur- 
pose or definite object. 

A state of war abrogates treaties previously existing between 
the belligerents and a treaty of peace puts an end to all claims 
for indemnity for tortious acts committed under the authority 
of one government against the citizens or subjects of another 
unless they are provided for in its stipulations. A treaty of 
peace which would terminate the existing war without pro- 
viding for indemnity would enable Mexico, the acknowledged 
debtor and herself the aggressor in the war, to relieve herself from 
her just liabilities . By such a treaty our citizens who hold just de- 
mands against her would have no remedy either against Mexico or 
their own Government. Our duty to these citizens must forever 
prevent such a peace, and no treaty which does not provide ample 
means of discharging these demands can receive my sanction. 

A treaty of peace should settle all existing differences be- • 
tween the two countries. If an adequate cession of territory 
should be made by such a treaty, the United States should 
release Mexico from all her liabilities and assume their pa)niient 
to our own citizens. If instead of this the United States were to 
consent to a treaty by which Mexico should again engage to 
pay the heavy amount of indebtedness which a just indemnity 
to our Government and our citizens would impose on her, it is 
notorious that she does not possess the means to meet such an 
undertaking. From such a treaty no result could be anticipated 
but the same irritating disappointments which have hereto- 
fore attended the violations of similar treaty stipulations on the 
part of Mexico. Such a treaty would be but a temporary cessa- 
tion of hostihties, without the restoration of the friendship and 
good understanding which should characterize the future 
intercourse between the two countries. 



PRESIDENT AND FOREIGN POLICY 401 

That Congress contemplated the acquisition of territorial 
indemnity when that body made provision for the prosecution 
of the war is obvious. Congress could not have meant when, in 
May, 1846, they appropriated $10,000,000 and authorized the 
President to employ the militia and naval and military forces 
of the United States and to accept the services of 50,000 volun- 
teers to enable him to prosecute the war, and when, at their 
last session, and after our Army had invaded Mexico, they 
made additional appropriations and authorized the raising of 
additional troops for the same purpose, that no indemnity was 
to be obtained from Mexico at the conclusion of the war; and 
yet it was certain that if no Mexican territory was acquired 
no indemnity could be obtained. It is further manifest that 
Congress contemplated territorial indemnity from the fact 
that at their last session an act was passed, upon the Executive 
recommendation, appropriating $3,000,000 with that express 
object. This appropriation was made "to enable the President 
to conclude a treaty of peace, limits, and boundaries with the 
Republic of Mexico, to be used by him in the event that said 
treaty, when signed by the authorized agents of the two Govern- 
ments and duly ratified by Mexico, shall call for the expendi- 
ture of the same or any part thereof." The object of asking 
this appropriation was distinctly stated in the several messages 
on the subject which I communicated to Congress. Similar 
appropriations made in 1803 and 1806, which were referred to, 
were intended to be applied in part consideration for the cession 
of Louisiana and the Floridas. In like manner it was antici- 
pated that in settling the terms of a treaty of "limits and bound- 
aries" with Mexico a cession of territory estimated to be of 
greater value than the amount of our demands against her 
might be obtained, and that the prompt payment of this sum 
in part consideration for the territory ceded, on the conclusion 
of a treaty and its ratification on her part, might be an induce- 
ment with her to make such a cession of territory as would be 
satisfactory to the United States; and although the failure to 
conclude such a treaty has rendered it unnecessary to use any 
part of the $3,000,000 appropriated by that act, and the entire 



402 THE NEW DEMOCRACY 

sum remains in the Treasury, it is still applicable to that object 
should the contingency occur making such application proper. 
The doctrine of no territory is the doctrine of no indemnity, 
and if sanctioned would be a public acknowledgment that our 
country was wrong and that the war declared by Congress 
with extraordinary unanimity was unjust and should be aban- 
doned — an admission unfounded in fact and degrading to the 
national character. . . . 

125. President Polk to the House of Representatives} 

In answer to the resolutions of the House of Representatives 
of the loth instant, requesting information in relation to New 
Mexico and California, I communicate herewith reports from 
the Secretary of State, the Secretary of the Treasury, the 
Secretary of War, and the Secretary of the Navy, with the 
documents which accompany the same. These reports and 
documents contain information upon the several points of 
inquiry embraced by the resolutions. . . . 

The resolutions request information in regard to the exist- 
ence of civil governments in New Mexico and California, their 
" form and character," by "whom instituted," by " what author- 
ity," and how they are "maintained and supported." . . . 

The temporary governments authorized were instituted by 
virtue of the rights of war. The power to declare war against 
a foreign country, and to prosecute it according to the general 
laws of war, as sanctioned by civilized nations, it will not 
be questioned, exists under our Constitution. When Congress 
has declared that war exists with a foreign nation, "the general 
laws'of war apply to our situation," and it becomes the duty of 
the President, as the constitutional "Commander in Chief of 
the Army and Navy of the United States," to prosecute it. 

In prosecuting a foreign war thus duly declared by Congress, 
we have the right, by "conquest and mihtary occupation," to 
acquire possession of the territories of the enemy, and, during 
the war, to "exercise the fullest rights of sovereignty over it." 

^ July 24, 1848. Richardson, Messages and Papers of the Presidents, 
IV, 594-96 passim. 



PRESIDENT AND FOREIGN POLICY 403 

The Sovereignty of the enemy is in such case "suspended," 
and his laws can "no longer be rightfully enforced" over the 
conquered territory "or be obligatory upon the inhabitants 
who remain and submit to the conqueror. By the surrender the 
inhabitants pass under a temporary allegiance" to the con- 
queror, and are "bound by such laws, and such only, as" he 
may choose to recognize and impose. "From the nature of the 
case, no other laws could be obligatory upon them, for where 
there is no protection or allegiance or sovereignty there can be 
no claim to obedience." These are well-established principles 
of the laws of war, as recognized and practised by civilized 
nations, and they have been sanctioned by the highest judicial 
tribunal of our own country. 

The orders and instructions issued to the officers of our Arm^y 
and Navy, applicable to such portions of the Mexican territory 
as had been or might be conquered by our arms, were in strict 
conformity to these principles. . . . 

It is from the same source of authority that we derive the 
unquestioned right, after the war has been declared by Con- 
gress, to blockade the ports and coast of the enemy, to capture 
his towns, cities, and provinces, and to levy contributions upon 
him for the support of our Army. Of the same character with 
these is the right to subject to our temporary military govern- 
ment the conquered territories of our enemy. They are all 
belligerent rights, and their exercise is as essential to the 
successful prosecution of a foreign war as the right to fight 
battles. 

New Mexico and Upper California were among the terri- 
tories conquered and occupied by our forces, and such tem- 
porary governments were established over them. They were 
established by the officers of our Army and Navy in command, 
in pursuance of the orders and instructions accompanying my 
message to the House of Representatives of December 22, 
1846. . . . 

On the conclusion and exchange of ratifications of a treaty 
of peace with Mexico, which was proclaimed on the 4th instant, 
these temporary governments necessarily ceased to exist. . . . 



404 THE NEW DEMOCRACY 

126. President Polk to Congress} 

Upon the exchange of ratifications of the treaty of peace with 
Mexico, on the 30th of May last, the temporary governments 
which had been estabHshed over New Mexico and Cahfornia 
by our military and naval commanders by virtue of the rights 
of war ceased to derive any obligatory force from that source 
of authority, and having been ceded to the United States, all 
government and control over them under the authority of 
Mexico had ceased to exist. Impressed with the necessity of 
establishing Territorial governments over them, I recommended 
the subject to the favorable consideration of Congress in my 
message communicating the ratified treaty of peace, on the 
6th of July last, and invoked their action at that session. 
Congress adjourned without making any provision for their 
government. The inhabitants by the transfer of their country 
had become entitled to the benefit of our laws and Constitu- 
tion, and yet were left without any regularly organized govern- 
ment. Since that time the very limited power possessed by the 
Executive has been exercised to preserve and protect them from 
the inevitable consequences of a state of anarchy. The only 
government which remained was that established by the mili- 
tary authority during the war. Regarding this to be a de facto 
government, and that by the presumed consent of the inhabit- 
ants it might be continued temporarily, they were advised to 
conform and submit to it for the short intervening period before 
Congress would again assemble and could legislate on the 
subject. ... 

^ December 5, 1848. Richardson, Messages and Papers of the Presi- 
dents, IV, 638. 



PART SEVEN. SLAVERY AND THE 
CONSTITUTION 

CHAPTER XLIV 

SLAVERY IN THE TERRITORIES 

From the beginning of the war, the acquisition of territory from Mexico, 
whether as indemnity or conquest, was earnestly desired by the adminis- 
tration at Washington. The prospect opened up long vistas of trouble. 
With every extension of territory the slavery question was bound to recur. 
President Polk's request for an appropriation for any cession of territory 
which Mexico might make as "indemnity," was the signal for an aggres- 
sive move on the part of the anti-slavery forces. Should such an accession 
of territory fall to the United States, they were bound that it should be 
made free soil. To this end they attached the Wilmot Proviso to succes- 
sive bills authorizing the desired appropriation. The House favored the 
Proviso, but the Senate would have none of it. Between 1847 and 1850 at 
least four different ways of dealing with the vexing question of slavery 
in the territories were proposed. One was presented by the South Carolina 
radicals led by Calhoun and Rhett; a second was reported by a committee 
of which Senator Clayton of Delaware was chairman; a third was offered 
by Cass and promptly dubbed "squatter sovereignty"; and a fourth was 
finally embodied in the Utah and New Mexico Territorial bills of 1850. 

127. The Wilmot Proviso} 

« 

Provided, That, as an express and fundamental condition to 
the acquisition of any territory from the Republic of Mexico 
by the United States, by virtue of any treaty which may be 
negotiated between them, and to the use by the Executive 
of the moneys herein appropriated, neither slavery nor invol- 
untary servitude shall ever exist in any part of said terri- 
tory, except for crime, whereof the party shall first be duly 
convicted. . . . 

^ Proposed by Representative Wilmot of Pennsylvania, August 8, 1846, 
as an amendment to the Two Million Dollar Bill. 



4o6 SLAVERY AND THE CONSTITUTION 

128. The Rhett-Calhoun Doctrine} 

The question made by the bill is, has Congress the power of 
excluding the people of the southern States from entering and 
colonizing with their slaves the territories of the United States? 
The gentleman from Indiana, [Mr. Pettit,] and others, affirm 
that it has, because the sovereignty of the Territories is in the 
Government of the United States. . . . 

Now, let us examine, first, before we ascend to general prin- 
ciples, the clause of the Constitution, on which the gentleman 
from Indiana relies, to show that sovereignty over the terri- 
tories, is in the Government of the United States. "The Con- 
gress shall have power to dispose of, and make all needful rules 
and regulations respecting, the territory or other property 
belonging to the United States," Here, in the first place, 
nothing is said about the Government of the United States. 
Whatever power is conceded by the clause is conceded to " the 
Congress" . . . Suppose Congress to be the Government, 
what power does the clause convey? "To dispose of, and make 
all needful rules and regulations concerning, the territory or 
other property belonging to the United States." Does the 
power "to dispose of and make all needful rules and regula- 
tions," imply sovereignty? Mark, sir, how far short this 
phraseology is in its scope of that other clause in the Consti- 
tution which relates to "the other property" of the United 
States — the forts, arsenals, magazines, and dock yards. Over 
these, and over this District, Congress "is to exercise exclusive 
legislation in all cases whatsoever." Does not the clause relate 
to the territory only as property, and confer only powers 
necessary for its disposition and control as property? It speaks 
of the territories in connexion with the "other property" of 
the United States. Congress can sell the lands lying within the 
territory, and, to secure purchasers and settlers in their per- 
sons and property, they can make "all needful rules and regu- 

^ Speech of Representative Rhett in the House, January 15, 1847. 
Congressional Globe, 29 Cong., 2 Sess., App., 244-46 passim. The resolu- 
tions of Calhoun, to the same purport, are in the Congressional Globe, 29 
Cong., 2 Sess., 455. 



SLAVERY IN THE TERRITORIES 407 

lations," establish territorial governments, and pass laws. . . . 
But the clause itself directly repudiates the idea that either 
Congress or the Government have any property, much less 
sovereignty over our territories. Its words are, "territory and 
other property belonging to the United States.'' Here is a direct 
affirmation that our territory does not ^^ belong'' either to Con- 
gress or the Government. Now, although it does not follow 
that where there is property (for property may belong to indi- 
viduals) there is sovereignty; yet where there is no property, 
over an unsettled country, there cannot be sovereignty. The 
"supreme ultimate authority" cannot exist where there is nei- 
ther the inferior right of property, which exists in individuals, 
or the higher right by the eminent domain. The clause, how- 
ever, does not stop at negativing, by implication, the idea that 
the Government has the sovereignty over our territories, but 
it directly asserts where the property and the sovereignty over 
them are — "belonging to the United States." . . . 

It declares, that the territories belong to the United States. 
They are tenants in common, or joint proprietors, and co- 
sovereigns over them. As co-sovereigns they have agreed, in 
their common compact, the Constitution, that their agent, 
the General Government, "may dispose of, and make all need- 
ful rules and regulations," with respect to them; but, beyond 
this, they are not limited or limitable in their rights. Their 
sovereignty, unalienated and unimpaired by this mutual con- 
cession to each other, exists in all its plenitude over our terri- 
tories ; as much so, as within the limits of the States themselves. 
Yet there can be no conflict; for none of the States can make 
any "rules and regulations" separately, within the territories, 
which may bring them in conflict. The "rules and regulations " 
prevailing, will be made by all, and obligatory on all, through 
their common agency, the Government of the United States. 
The only effect, and probably the only object of their reserved 
sovereignty, is, that it secures to each State the right to enter 
the territories with her citizens, and settle and occupy them 
with their property — with whatever is recognised as property 
by each State. The ingress of the citizen, is the ingress of his 



4o8 SLAVERY AND THE CONSTITUTION 

sovereign, who is bound to protect him in his settlement. It 
matters not, whether he carries those who are slaves or not. 
He is not responsible to any of the co-sovereigns, for the nature 
of this property. That is an affair between him and his State. 
Nor can the other States have any just ground of complaint, 
because the southern States occupy a portion of the territory 
common to them with their slaves. Did not this institution 
exist, when they made the compact of union with them? Will 
not every foot of territory acquired be purchased by their com- 
mon blood or treasure? And do they not know, that the south- 
em States must enter it with their slaves, or not at all? Nay, 
more, that in vast regions, where the Anglo-Saxon race cannot 
cultivate the soil, they must be cultivated by a southern 
planter, or be left a wilderness? In exercising a common right 
over a common property, the southern States only do what the 
other States have also a right to do, without giving any just 
cause for pleading surprise or injustice. But it will be a sur- 
prise — it will be a strange injustice, if a portion of the States, 
whether free or slave, shall presume to set up their will as 
supreme over the territories, and through Congress, or any 
other instrumentality, shall attempt to exclude any of these 
co-States from possessing and colonizing them. This would 
practically be to assert, that the sovereignty over the terri- 
tories is not in all the States, but in the excluding portion 
only. . . . 

129. The Law of the Acquired Territories.^ 

To be understood more clearly, I will read the terms of the 
bill itself, so far as it relates to slavery in New Mexico and 
California. It will be seen that all legislation by the Territorial 
Governments " respecting the prohibition or establishment of 
African slavery" was to be prohibited; and all questions relat- 
ing to titles to slaves there, or their right to freedom, was to be 
left ultimately to the decision of the Supreme Court of the 
United States. . . . 

^ Representative Stephens on the Clayton Compromise, August 7, 
1848. Congressional Globe, 30 Cong., i Sess., App., 1104-06 passim. 



SLAVERY IN THE TERRITORIES 409 

The bill contains nothing else which bears materially upon 
the subject of slavery. It merely prohibits the Territorial 
Government from passing any law upon the subject ; and leaves 
the southern man, who may be inclined to go there with his 
slaves, to contest his rights to the best of his abilities with the 
courts of the Territory in the first instance, and then, if he 
chooses, with the Supreme Court of the Union. . . . 

I set out, then, by stating, that according to the best, ablest, 
and most approved writers on pubHc law, and according to the 
decision of the courts in England in analogous cases, and ac- 
cording to the repeated decisions of our own Supreme Court, to 
which this bill proposed to refer this matter, (in the absence of 
such legislation as I have alluded to,) the law by which the 
courts would decide questions of slavery there is the law which 
was in force in New Mexico and California upon that subject at 
the time of the conquest. . . . 

For this purpose I refer, first, to the opinion given by Chief 
Justice Marshall in the case of the American Insurance Com- 
pany et al. vs. Canter, ist Peters, 542. In this case that learned 
judge used the following language: [ See No. 73 above.] 

But, sir, this principle has been repeatedly decided by the same 
tribunal, I have another case before me, in 12 Peters' Reports, 
page 410, in which the same doctrine is held, and a long list of 
cases cited, in which it is also affirmed. This is the case of 
Strother 1)5. Lucas. . . . 

Here, again, is a clear and distinct recognition of the same 
principle, with the declaration that the "laws, whether in 
writing or evidenced by the usage and custom of the conquered 
or ceded country, continue in force till altered by the new 
sovereign." . . . 

And now, Mr. Speaker, if such be the decisions of our own 
Supreme Court upon this point, as I presume no gentleman 
upon this floor will venture to gainsay or deny, there is but 
one other question left, and that is, what was the law upon 
the subject of slavery in California or New Mexico at the time 
of their conquest? This is an important question. The whole 
merits of the case turn upon it. And upon this point, I sup- 



4IO SLAVERY AND THE CONSTITUTION 

pose, there can be no doubt. Slavery was abolished there in 
1829. . . . 

I take it for granted that nobody will deny that slavery was 
abolished in California and New Mexico at the time of their 
conquest by our arms. If a slave at that time had brought an 
action for his freedom against his master before the courts of 
the country, does any man doubt but that the courts under the 
law then in force would have declared him to be free? And as 
our court has decided that in all such cases the laws of the ac- 
quired territory in force at the time of the acquisition, shall 
remain in force as the law of the place until altered by com- 
petent authority, can any man doubt that they would decide 
the question just as the Mexican courts would have decided 
it at that time? . . . 

. . . The Constitution recognizes slavery in Tennessee and 
Georgia, and in all the States where slavery exists by law; but it 
does not recognize it in New York or Ohio, or in any State 
where it is prohibited by the law of the State, except so far as it 
provides for the recapture of runaway slaves. ... If my slave 
escapes and gets into a free State, the Constitution secures me 
the right of pursuing and retaking him : but if I voluntarily take 
my slave into a State where slavery by law is prohibited, I 
have no right to retake him; he becomes free. No man will 
question this. And if slavery is prohibited by the local law of 
the newly acquired territory, the only guarantee the Constitu- 
tion affords the slaveholder is the right of recapture if he 
escapes and gets into those Territories. . . . 

The Constitution secures to all the citizens of all the States 
and Territories of the Union the rights to which they are en- 
titled by the laws of the place. If Virginia or Georgia should 
abolish slavery, the Constitution would no more reestablish it 
there than it has reestablished it in Pennsylvania, New York, 
and other States where it has been abolished. The Constitution 
no more carries the local law of slavery of any State into a State 
or Territory where, by law, it is prohibited, than it carries any 
other local law; no more than it carries the law of interest upon 
money, the statute of limitations, the laws of distribution, or 



SLAVERY IN THE TERRITORIES 411 

the penal laws of a State. And, sir, if this compromise bill had 
passed, how could the master have been protected against the 
theft or purloining of his slave? By what law would he have 
sued to recover him? By what law would the sale and evidences 
of title in slaves have been determined? Each of the slave 
States has its own laws upon this subject. And if the Constitu- 
tion carries the laws of the States into these Territories, does it 
carry the laws of all or any particular one? And if any one, 
which is it? . . . 

My position, Mr. Speaker, is this : That slavery is an institu- 
tion which depends solely upon the municipal law of the place 
where it exists ; and if it was prohibited by law in these Terri- 
tories at the time of the conquest, it cannot exist there until the 
laws of the place be altered by the competent law-making 
power for the Territory. ... 

130. " Squatter Sovereignty J^ ^ 

The theory of our Government presupposes that its various 
members have reserved to themselves the regulation of all 
subjects relating to what may be termed their internal police. 
They are sovereign within their boundaries, except in those 
cases where they have surrendered to the General Government 
a portion of their rights, in order to give effect to the objects of 
the Union, whether these concern foreign nations or the several 
States themselves. Local institutions, if I may so speak, 
whether they have reference to slavery or to any other rela- 
tions, domestic or public, are left to local authority, either 
original or derivative. Congress has no right to say there shall 
be slavery in New York, or that there shall be no slavery in 
Georgia; nor is there any other human power, but the people of 
those States, respectively, which can change the relation exist- 
ing therein; and they can say, if they will, " We will have slav- 
ery in the former, and we will abolish it in the latter." 

In various respects, the Territories differ from the States. 
Some of their rights are inchoate, and they do not possess the 

^ Lewis Cass to Governor Nicholson, December 24, 1847. Niles's 
Register, lxxiii, 293-94. 



412 SLAVERY AND THE CONSTITUTION 

peculiar attributes of sovereignty. Their relation to the Gen- 
eral Government is very imperfectly defined by the Constitu- 
tion; and it will be found, upon examination, that in that 
instrument the only grant of power concerning them is con- 
veyed in the phrase, " Congress shall have the power to dispose 
of and make all needful rules and regulations respecting the 
territory and other property belonging to the United States." 
Certainly this phraseology is very loose, if it designed to include 
in the grant the whole power of legislation over persons, as well 
as things. The expression, the "territory and other property," 
fairly construed, related to the public lands, as such; to arsen- 
als, dockyards, forts, ships, and all the various kinds of prop- 
erty which the United States may and must possess. 

But surely the simple authority to dispose of and regulate 
these does not extend to the unlimited power of legislation; to 
the passage of all laws, in the most general acceptation of the 
word, which, by the by, is carefully excluded from the sentence. 
And, indeed, if this were so, it would render unnecessary an- 
other provision of the Constitution, which grants to Congress 
the power to legislate, with the consent of the States, respect- 
ively, over all places purchased for the "erection of forts, 
magazines, arsenals, dockyards," etc. These being the "'prop- 
erty'^ of the United States, if the power to make "needful rules 
and regulations concerning" them includes the general power 
of legislation, then the grant of authority to regulate "the 
territory and other property of the United States " is unlimited, 
wherever subjects are found for its operation, and its exercise 
needed no auxiliary provision. If, on the other hand, it does 
not include such power of legislation over the "other property" 
of the United States, then it does not include it over their 
"territory;" for the same terms which grant the one grant the 
other. "Territory^' is here classed with property, and treated 
as such; and the object was evidently to enable the General 
Government, as a property-holder — which, from necessity, 
it must be — to manage, preserve and "dispose of" such prop- 
erty as it might possess, and which authority is essential almost 
to its being. But the lives and persons of our citizens, with the 



SLAVERY IN THE TERRITORIES 413 

vast variety of objects connected with them, cannot be con- 
trolled by an authority which is merely called into existence for 
the purpose of making rules and regulations for the disposition 
and management of property. 

Such, it appears to me, would be the construction put upon 
this provision of the Constitution, were this question now first 
presented for consideration, and not controlled by imperious 
circumstances. The original ordinance of the Congress of the 
Confederation, passed in 1787, and which was the only act 
upon this subject in force at the adoption of the Constitution, 
provided a complete frame of government for the country 
north of the Ohio, while in a territorial condition, and for its 
eventual admission in separate States into the Union. And 
the persuasion that this ordinance contained within itself all 
the necessary means of execution, probably prevented any 
direct reference to the subject in the Constitution, further than 
vesting in Congress the right to admit the States formed under 
it into the Union. However, circumstances arose, which re- 
quired legislation, as well over the territory north of the Ohio, 
as over other territory, both within and without the original 
Union, ceded to the General Government, and, at various 
times, a more enlarged power has been exercised over the 
Territories — meaning thereby the different Territorial Gov- 
ernments — than is conveyed by the limited grant referred to. 
How far an existing necessity may have operated in producing 
this legislation, and thus extending, by rather a violent impli- 
cation powers not directly given, I know not. But certain it is 
that the principle of interference should not be carried beyond 
the necessary implication, which produces it. It should be 
limited to the creation of proper governments for new coun- 
tries, acquired or settled, and to the necessary provisions for 
their eventual admission into the Union ; leaving, in the mean- 
time, to the people inhabiting them, to regulate their internal 
concerns in their own way. They are just as capable of doing 
so as the people of the States ; and they can do so, at any rate 
as soon as their political independence is recognized by admis- 
sion into the Union. During this temporary condition, it is 



414 SLAVERY AND THE CONSTITUTION 

hardly expedient to call into exercise a doubtful and invidious 
authority which questions the intelligence of a respectable 
portion of our citizens, and whose limitation, whatever it may 
be, will be rapidly approaching its termination — an authority 
which would give to Congress despotic power, uncontrolled by 
the Constitution, over most important sections of our common 
country. . . . 

131. The Territorial Acts oj i8jo for Utah and New Mexico.'^ 

. . . Those enactments embrace, among other things, less 
material to the matters under consideration, the following 
provisions : 

"When admitted as a State, the said Territory or any portion 
of the same, shall be received into the Union, with or without 
slavery, as their constitution may prescribe at the time of their 
admission." 

"That the legislative power and authority of said Territory 
shall be vested in the governor and a legislative assembly." 

"That the legislative power of said Territory shall extend to 
all rightful subjects of legislation, consistent with the Constitu- 
tion of the United States and the provisions of this act ; but no 
law shall be passed interfering with the primary disposal of the 
soil ; no tax shall be imposed upon the property of the United 
States ; nor shall the lands or other property of non-residents be 
taxed higher than the lands or other property of residents." 

"Writs of error and appeals from the final decisions of said 
supreme court shall be allowed, and may be taken to the Su- 
preme Court of the United States in the same manner and un- 
der the same regulations as from the circuit courts of the 
United States, where the value of the property or the amount in 
controversy, to be ascertained by the oath or affirmation of 
either party, or other competent witness, shall exceed one thou- 
sand dollars, except only that, in all cases involving title to 
slaves, the said writs of error or appeals shall be allowed and 
decided by the said supreme court, without regard to the value 

^ Report of the Senate Committee on Territories, January 4, 1854. Senate 
Reports, No. 15, 33 Cong., i Sess. 



SLAVERY IN THE TERRITORIES 415 

of the matter, property, or title in controversy; and except, 
also, that a writ of error or appeal shall also be allowed to the 
Supreme Court of the United States, from the decisions of the 
said supreme court created by this act, or of any judge thereof, 
or of the district courts created by this act, or of any judge 
thereof, upon any writ of habeas corpus involving the question 
of personal freedom ; and each of the said district courts shall 
have and exercise the same jurisdiction in all cases arising un- 
der the Constitution and laws of the United States as is vested 
in the circuit and district courts of the United States; and the 
said supreme and district courts of the said Territory, and the 
respective judges thereof, shall and may grant writs of habeas 
corpus in all cases in which the same are granted by the judges 
of the United States in the District of Columbia." 



CHAPTER XLV 

THE RENDITION OF FUGITIVE SLAVES 

The facts in the case of Prigg v. Pennsylvania may be briefly stated. 
Prigg was the agent of Margaret Ashmore, a citizen of Maryland and 
owner of a negro woman who had escaped into Pennsylvania. Under 
warrant from a magistrate of Pennsylvania, Prigg had caused the woman 
to be apprehended; but he was unable to persuade the local authority, 
before whom she was brought, to take further cognizance of the case. 
Thereupon Prigg carried the woman and her children vi et armis out of 
the State and delivered them into the custody of their owner. For this 
forcible seizure and abduction, Prigg was subsequently indicted for 
felony under a Pennsylvania statute of 1826. Judgment in the lower 
courts against him was reaffirmed in the supreme court of Pennsylvania. 
The case was then taken to the Supreme Court of the United States on 
writ of error. 

Under cover of the decision of the Court in this case of Prigg v. 
Pennsylvania, many Northern States passed personal liberty laws similar 
to that of Vermont which follows. These acts in turn led the South to 
demand a more stringent fugitive slave law. The Act of 1850 was framed 
to meet these demands. On the much-mooted question whether this stat- 
ute of 1850 denied the privilege of the writ of habeas corpus, the opinion 
of the Attorney-General, John J. Crittenden, is of importance. 

132. Prigg V. Pennsylvania.^ 

Mr. Justice Story delivered the opinion of the Court: 
There are two clauses in the constitution upon the subject 
of fugitives which stand in juxtaposition with each other, and 
have been thought mutually to illustrate each other. They are 
both contained in the second section of the fourth article. . . . 

The last clause is that, the true interpretation whereof is di- 
rectly in judgment before us. Historically, it is well known that 
the object of this clause was to secure to the citizens of the 
slaveholding States the complete right and title of ownership 
in their slaves, as property, in every State in the Union into 
which they might escape from the State where they were held 
in servitude. . . . 

^ Supreme Court of the United States, 1842. 16 Peters, 539. 



RENDITION OF FUGITIVE SLAVES 417 

The clause manifestly contemplates the existence of a posi- 
tive, unqualified right on the part of the owner of the slave, 
which no State law or regulation can in any way qualify, regu- 
late, control, or restrain. The slave is not to be discharged 
from service or labor, in consequence of any State law or regu- 
lation. . . . 

The owner must, therefore, have the right to seize and repos- 
sess the slave, which the local laws of his own State confer upon 
him as property; and we all know that this right of seizure and 
recaption is universally acknowledged in all the slaveholding 
States. Indeed, this is no more than a mere affirmance of the 
principles of the common law applicable to this very sub- 
ject. ... 

Upon this ground we have not the slightest hesitation in 
holding that, under and in virtue of the constitution, the owner 
of a slave is clothed with entire authority, in every State in the 
Union, to seize and recapture his slave, whenever he can do it 
without any breach of the peace or any illegal violence. In this 
sense and to this extent this clause of the constitution may 
properly be said to execute itself, and to require no aid from 
legislation. State or national. 

But the clause of the constitution does not stop here; nor, 
indeed, consistently with its professed objects, could it do so. 
Many cases must arise in which, if the remedy of the owner 
were confined to the mere right of seizure and recaption, he 
would be utterly without any adequate redress. . . . 

And this leads us to the consideration of the other part of the 
clause which implies at once a guaranty and duty. It says: 
"But he (the slave) shall be delivered up on claim of the party 
to whom such service or labor may be due." Now, we think it 
exceedingly difficult, if not impracticable, to read this language 
and not to feel that it contemplated some farther remedial 
redress than that which might be administered at the hands of 
the owner himself. A claim is to be made. What is a claim? It 
is, in a just juridical sense, a demand of some matter as of right 
made by one person upon another, to do or to forbear to do 
some act or thing as a matter of duty. . . . The slave is to be 



4i8 SLAVERY AND THE CONSTITUTION 

delivered up on the claim. By whom to be delivered up? In 
what mode to be delivered up? How, if a refusal takes place, is 
the right of delivery to be enforced? Upon what proofs? What 
shall be the evidence of a rightful recaption or delivery? When 
and under what circumstances shall the possession of the owner, 
after it is obtained, be conclusive of his right, so as to preclude 
any further inquiry or examination into it by local tribunals or 
otherwise, while the slave, in possession of the owner, is in 
transitu to the State from which he fled? 

These, and many other questions, will readily occur upon the 
slightest attention to the clause; and it is obvious that they 
can receive but one satisfactory answer. They require the aid 
of legislation to protect the right, to enforce the delivery, and 
to secure the subsequent possession of the slave. . . . 

Congress has taken this very view of the power and duty of 
the national government. . , . The result of their delibera- 
tions, was the passage of the Act of the 12th of February, 1793 
(ch. 51, 7), which, after having, in the first and second sections, 
provided for the case of fugitives from justice by a demand 
to be made of the delivery through the executive authority 
of the State where they are found, proceeds, in the third sec- 
tion, to provide, that when a person held to labor or service 
in any of the United States shall escape into any other of the 
States or territories, the person to whom such labor or service 
may be due, his agent or attorney, is hereby empowered tc 
seize or arrest such fugitive from labor, and take him or hei 
before any judge of the circuit or district courts of the United 
States, residing or being within the State, or before any magis- 
trate of a county, city, or town corporate, wherein such seizure 
or arrest shall be made; and upon proof to the satisfaction of 
such judge or magistrate, either by oral evidence or affidavit, 
&c., that the person so seized or arrested, doth, under the laws 
of the State or territory from which he or she fled, owe service 
or labor to the person claiming him or her, it shall be the duty 
of such judge or magistrate to give a certificate thereof to 
such claimant, his agent or attorney, which shall be sufficient 
warrant for removing the said fugitive from labor to the State 



RENDITION OF FUGITIVE SLAVES 419 

or territory from which he or she fled. The fourth section pro- 
vides a penalty against any person who shall knowingly and 
willingly obstruct or hinder such claimant, his agent, or attor- 
ney, in so seizing or arresting such fugitive from labor, or rescue 
such fugitive from the claimant, or his agent, or attorney, when 
so arrested, or who shall harbor or conceal such fugitive after 
notice that he is such ; and it also saves to the person claiming 
such labor or service his right of action for or on account of 
such injuries. 

In a general sense, this act may be truly said to cover the 
whole ground of the constitution, both as to fugitives from 
justice, and fugitive slaves; that is, it covers both the subjects 
in its enactments; not because it exhausts the remedies which 
may be applied by Congress to enforce the rights, if the pro- 
visions of the act shall in practice be found not to attain the 
object of the constitution; but because it points out fully all 
the modes of attaining those objects, which Congress, in their 
discretion, have as yet deemed expedient or proper to meet the 
exigencies of the constitution. . . . 

We hold the act to be clearly constitutional in all its leading 
provisions, and, indeed, with the exception of that part which 
confers authority upon State magistrates, to be free from 
reasonable doubt and difficulty upon the grounds already 
stated. As to the authority so conferred upon State magis- 
trates, while a difference of opinion has existed, and may exist 
still on the point, in different States, whether State magis- 
trates are bound to act under it, none is entertained by this 
court, that State magistrates may, if they choose, exercise that 
authority, unless prohibited by State legislation. 

The remaining question is, whether the power of legislation 
upon this subject is exclusive in the national government, or 
concurrent in the States, until it is exercised by Congress. In 
our opinion it is exclusive; and we shall now proceed briefly 
to state our reasons for that opinion. The doctrine stated by 
this court in Sturgis v. Crowninshield (4 Wheat. Rep. 122, 193) 
contains the true, although not the sole rule or consideration, 
which is applicable to this particular subject. "Wherever," 



420 SLAVERY AND THE CONSTITUTION 

said Mr. Chief Justice Marshall, in delivering the opinion of 
the court, "the term,s in which a power is granted to Congress, 
or the nature of the power require, that it should be exercised 
exclusively by Congress, the subject is as completely taken 
from the State Legislatures as if they had been forbidden to 
act." The nature of the power and the true objects to be 
attained by it, are then as important to be weighed, in consid- 
ering the question of its exclusiveness, as the words in which it 
is granted. 

In the first place, it is material to state (what has been 
already incidentally hinted at) that the right to seize and retake 
fugitive slaves, and the duty to deliver them up, in whatever 
State of the Union they may be found, and of course the cor- 
responding power of Congress to use the appropriate means to 
enforce the right and duty, derive their whole validity and 
obligation exclusively from the constitution of the United 
States, and are there, for the first time, recognized and estab- 
lished in that peculiar character. . . . The natural inference 
deducible from this consideration certainly is, in the absence 
of any positive delegation of power to the State Legislatures, 
that it belongs to the legislative department of the national 
government, to which it owes its origin and establishment. . . . 

In the next place, the nature of the provision and the objects 
to be attained by it require that it should be controlled by one 
and the same will, and act uniformly by the same system of 
regulations throughout the Union. If, then, the States have a 
right, in the absence of legislation by Congress, to act upon 
the subject, each State is at liberty to prescribe just such 
regulations as suit its own policy, local convenience, and local 
feelings. . . . 

It is scarcely conceivable that the slaveholding States would 
have been satisfied with leaving to the legislation of the non- 
slaveholding States a power of regulation, in the absence of 
that of Congress, which would or might practically amount to 
a power to destroy the rights of the owner. If the argument, 
therefore, of a concurrent power in the States to act upon the 
subject matter in the absence of legislation by Congress be well 



RENDITION OF FUGITIVE SLAVES 421 

founded ; then, if Congress had never acted at all, or if the act 
of Congress should be repealed without providing a substitute, 
there would be a resulting authority in each of the States to 
regulate the whole subject at its pleasure, and to dole out its 
own remedial justice, or withhold it at its pleasure and accord- 
ing to its own views of poHcy and expediency. Surely such a 
state of things never could have been intended, under such a 
solemn guaranty of right and duty. . . . 

We entertain no doubt whatsoever that the States, in virtue 
of their general police power, possess full jurisdiction to arrest 
and restrain runaway slaves, and remove them from their 
borders, and otherwise to secure themselves against their 
depredations and evil example, as they certainly may do in 
cases of idlers, vagabonds, and paupers. . . . But such regu- 
lations can never be permitted to interfere with or to obstruct 
the just rights of the owner to reclaim his slave, derived from 
the constitution of the United States, or with the remedies 
prescribed by Congress to aid and enforce the same. 

Upon these grounds, we are of opinion that the act of Penn- 
sylvania upon which this indictment is founded, is unconstitu- 
tional and void. ... 

133. Report of the Legislature of Virginia, i84g} 

. . . The South is wholly without the benefit of that solemn 
constitutional guaranty which was so sacredly pledged to it 
at the formation of this Union. Our condition is precisely in 
effect, that which it was under the articles of the old confedera- 
tion. No citizen of the South can pass the frontier of a non- 
slaveholding state and there exercise his undoubted constitu- 
tional right of seizing his fugitive slave, with a view to take him 
before a judicial ofl&cer and there prove his right of ownership, 
without imminent danger of being prosecuted criminally as a 
kidnapper, or being sued in a civil action for false imprison- 
ment — imprisoned himself for want of bail, and subjected 
in his defence to an expense exceeding the whole value of 
the property claimed, or finally of being mobbed or being 
^ Acts of Virginia, 1849-50, 240-54 passim. 



422 SLAVERY AND THE CONSTITUTION 

put to death in a street fight by insane fanatics or brutal ruf- 
fians. . . . 

. . . The legislation to be found upon this subject, on the 
statute books of the non-slaveholding states, may be divided 
into two classes. The first of which would embrace the legis- 
lation of those states, which, professing a seeming respect for 
the obHgations of the constitution, do, under the pretext of 
conforming to its requisitions, subject the slave owner to con- 
ditions utterly incompatible with the recovery of his slaves. . . . 

Second, The laws of those states which affect no conceal- 
ment of their hatred to Southern institutions, nor of their 
utter and open contempt and defiance of the obligations of the 
federal compact. 

Of this class; which is now indeed the prevailing legislation 
of almost the whole non-slaveholding states, an act passed by 
the general assembly of the state of Vermont, on the ist day 
of November 1843, ^^.y be cited as a fair illustration. It is in 
these words: 

"An Act for the protection of Personal Liberty. 

"It is hereby enacted by the general assembly of the state of 
Vermont, as follows: 

"Sec. I. No court of record in this state, nor any judge 
thereof, no justice of the peace nor other magistrate, acting 
under the authority of this state, shall hereafter take cog- 
nizance of, or grant any certificate, warrant or other process, 
in any case arising under section three of an act of congress, 
passed February twelfth, seventeen hundred and ninety-three, 
entitled 'An act respecting fugitives from justice, and persons 
escaping from the service of their masters,' to any person claim- 
ing any other person as a fugitive slave in this state. 

"Sec. 2. No sheriff, deputy sheriff, high bailiff, constable, 
jailor, or other officer or citizen of this state, shall hereafter 
seize, arrest or detain, or aid in the seizure, arrest or detention, 
or imprisonment in any jail or other building belonging to this 
state, or to any county, town, city or person therein, of any 
person for the reason that he is or may be claimed as a fugitive 
slave. 



RENDITION OF FUGITIVE SLAVES 423 

"Sec. 3. No sheriff, deputy sheriff, high bailiff, constable, 
or other officer or citizen of this state, shall transport, or 
remove, or aid or assist in the transportation or removal of 
any fugitive slave, or any person claimed as such, from any 
place in this state to any other place within or without the 
same. 

"Sec. 4. If any such judge, justice of the peace, magistrate, 
officer or citizen, shall offend against the two preceding sec- 
tions, such judge, justice of peace, magistrate, officer or citizen, 
shall be subject to the penalties provided in section five of this 
act. 

"Sec. 5. Any judge of any court of record in this state, any 
justice of the peace or other magistrate, any sheriff, deputy 
sheriff, high bailiff, constable, or jailor, or any citizen of this 
state, who shall offend against the provisions of this act, by 
acting directly or indirectly under the provisions of section 
three of the act of congress aforesaid, shall forfeit a sum not 
exceeding one thousand dollars, to the use of the state, to be 
recovered upon information or indictment, or be imprisoned 
in the state prison not exceeding five years." . . . 

134. Opinion of the Attorney-General on the Fugitive Slave Law 

of 1850.^ 

. . . The Supreme Court of the United States has decided 
that the owner independent of any aid from State or national 
legislation, may, in virtue of the constitution, and his own 
right of property, seize, and recapture his fugitive slave in what- 
soever State he may find him, and carry him back to the State 
or Territory from which he escaped. (Prigg vs. Commonwealth 
of Pennsylvania, 18 Peters, 359.) This bill, therefore, confers 
no right on the owner of the fugitive slave. It only gives him 
an appointed and peaceable remedy in place of the more 
exposed and insecure, but not less lawful mode of self redress ; 
and as to the fugitive slave, he has no cause to complain of this 
bill — it adds no coercion to that which the owner himself 

^ September i8, 1850. Executive Documents, 31 Cong., 2 Sess., 2099- 
2102 passim. 



424 SLAVERY AND THE CONSTITUTION 

might, at his own will, rightfully exercise; and all the proceed- 
ings which it institutes are but so much of orderly judicial 
authority interposed between him and his owner and conse- 
quently a protection to him, and mitigation of the exercise 
directly by the owner himself of his personal authority. . . . 

My opinion, as before expressed, is, that there is nothing in 
that clause or section [6th] which conflicts with or suspends 
or was intended to suspend the privilege of the writ of habeas 
corpus. I think so because the bill says not one word about that 
writ — because, by the constitution. Congress is expressly for- 
bidden to suspend the privilege of this writ "Unless when in 
cases of rebellion or invasion the pubhc safety may require 
it;" and, therefore, such suspension by this act (there being 
neither rebellion or invasion) would be a plain and palpable 
violation of the constitution, and no intention to commit such 
a violation of the constitution, of their duty and their oaths, 
ought to be imputed to them upon mere constructions and im- 
plications — and, thirdly, because there is no incompatibility 
between these provisions of the bill and the privilege of the writ 
of habeas corpus in its utmost constitutional latitude. . . . 
■^ It is not within the province or privilege of this great writ 
to loose those whom the law has bound. That would be to put 
a writ granted by the law in opposition to the law, to make 
one part of the law destructive of another. This writ follows 
the law and obeys the law. It is issued, upon proper com- 
plaint, to make inquiry into the causes of commitment or 
imprisonment and its sole remedial power and purpose is to 
deliver the party from "all manner of illegal confinement." 
(3 Black. Com. 131.) . . . 

The condition of one in custody as a fugitive slave is, under 
this law, so far as respects the writ of habeas corpus, precisely 
the same as that of all other prisoners under the laws of the 
United States. The "privilege" of that writ remains alike to 
all of them, but to be judged of — granted, or refused — dis- 
charged or enforced — by the proper tribunal, according to the 
circumstances of each case, and as the commitment and 
detention may appear to be legal or illegal. 



RENDITION OF FUGITIVE SLAVES 425 

The whole effect of the law may be thus briefly stated ; Con- 
gress has constituted a tribunal with exclusive jurisdiction to 
determine summarily, and without appeal, who are fugitives 
from service or labor under the 2d section of the 4th article 
of the constitution, and to whom such service or labor is due. 
The judgment of every tribunal of exclusive jurisdiction where 
no appeal lies, is of necessity, conclusive upon every other 
tribunal. And, therefore, the judgment of the tribunal created 
by this act is conclusive upon all tribunals[;] wherever this 
judgment is made to appear it is conclusive of the right of the 
owner to retain in his custody the fugitive from his service, and 
to remove him back to the place or state from which he 
escaped. If it is shown upon the application of the fugitive 
for a writ of habeas corpus, it prevents the issuing of the writ 
— if, upon the return, it discharges the writ and restores or 
maintains the custody. 

The expressions used in the last clause of the 6th section, 
that the certificate therein alluded to "shall prevent all 
molestation" of the persons to whom granted "by any process 
issued," &c., probably mean only what the act of 1795 meant 
by declaring a certificate under that act a sufficient warrant 
for the removal of the fugitive, and certainly do not mean a 
suspension of the habeas corpus. . . . 



CHAPTER XLVI 

THE DOCTRINE OF POPULAR SOVEREIGNTY 

The Kansas-Nebraska Act had a long and involved history. The 
Nebraska Bill, which was reported by the Committee on Territories of the 
Senate on January 4, 1854, conformed in general to the provisions of the 
Utah and New Mexico Acts. It contained no reference to the Missouri 
Compromise, but subsequently it was amplified by a section (omitted 
by a clerical error, it was said) which incorporated the three propositions 
contained in the report. All questions pertaining to slavery were to be 
left to the decision of the people through their appropriate representa- 
tives. Did this mean that the people were not to be restrained by the 
prohibition of the Missouri Act of 1820? All doubts on this point were 
removed by sundry amendments which were reported on January 23, 
by the Committee on Territories. Two Territories, Nebraska and Kansas, 
were now to be organized with the same provisions as in the case of Utah 
and New Mexico, while the Missouri Compromise was declared to have 
been "superseded by the principles of the legislation of 1850," and there- 
fore to be "inoperative." On February 6, still another amendment was 
offered, — a compromise agreed upon in a Democratic caucus, — which 
was finally adopted and incorporated in sections 14 and 32. The restric- 
tive section of the Missouri Act of 1820 was now declared to be "incon- 
sistent with the principle of non-intervention by Congress with slavery 
in the States and Territories, as recognized by the legislation of 1850," 
and therefore "inoperative and void." Subjoined to the foregoing was 
the declaration: "It being the true intent and meaning of this act not to 
legislate slavery into any Territory or State, nor to exclude it therefrom, 
but to leave the people thereof perfectly free to form and regulate their 
domestic institutions in their own way, subject only to the Constitution 
of the United States." It should be noted that Douglas employed the 
phrases "non-intervention" and "popular sovereignty" interchangeably, 
while his Southern colleagues repudiated popular sovereignty and ac- 
quiesced in non-intervention as in effect conceding all the rights which 
they claimed in the Territories. It should also be noted that the Kansas- 
Nebraska Act, like the Utah Act, provided for an ultimate appeal to the 
Supreme Court on all matters involving title to slave property in the 
Territories. 

135. Report of the Senate Committee on Territories, 1854.^ 

The principal amendments which your committee deem it 
their duty to commend to the favorable action of the Senate, 

^ Senate Reports, No. 15, ii Cong., i Sess. January 4, 1854. 



POPULAR SOVEREIGNTY 427 

in a special report, are those in which the principles established 
by the compromise measures of 1850, so far as they are applic- 
able to territorial organizations, are proposed to be afhrmed 
and carried into practical operation within the limits of the 
new Territory. 

The wisdom of those measures is attested, not less by their 
salutary and beneficial effects, in allaying sectional agitation 
and restoring peace and harmony to an irritated and distracted 
people, than by the cordial and almost universal, approbation 
with which they have been received and sanctioned by the 
whole country. In the judgment of your committee, those 
measures were intended to have a far more comprehensive and 
enduring effect than the mere adjustment of the difficulties 
arising out of the recent acquisition of Mexican territory. They 
were designed to establish certain great principles, which would 
not only furnish adequate remedies for existing evils, but, in all 
time to come, avoid the perils of a similar agitation, by with- 
drawing the question of slavery from the halls of Congress and 
the political arena, and committing it to the arbitrament of 
those who were immediately interested in, and alone respon- 
sible for its consequences. With the view of conforming their 
action to what they regard the settled policy of the govern- 
ment, sanctioned by the approving voice of the American 
people, your committee have deemed it their duty to incor- 
porate and perpetuate, in their territorial bill, the principles 
and spirit of those measures. If any other considerations were 
necessary, to render the propriety of this course imperative 
upon the committee, they may be found in the fact, that the 
Nebraska country occupies the same relative position to the 
slavery question, as did New Mexico and Utah, when those 
territories were organized. 

It was a disputed point, whether slavery was prohibited by 
law in the country acquired from Mexico. On the one hand it 
was contended, as a legal proposition, that slavery having been 
prohibited by the enactments of Mexico, according to the laws 
of nations, we received the country with all its local laws and 
domestic institutions attached to the soil, so far as they did 



428 SLAVERY AND THE CONSTITUTION 

not conflict with the Constitution of the United States; and 
that a law, either protecting or prohibiting slavery, was not 
repugnant to that instrument, as was evidenced by the fact, 
that one-half of the States of the Union tolerated, while the 
other half prohibited, the institution of slavery. On the other 
hand it was insisted that, by virtue of the Constitution of the 
United States, every citizen had a right to remove to any 
Territory of the Union, and carry his property with him under 
the protection of law, whether that property consisted in 
persons or things. . . . 

Such being the character of the controversy, in respect to the 
territory acquired from Mexico, a similar question has arisen in 
regard to the right to hold slaves in the proposed territory of 
Nebraska when the Indian laws shall be withdrawn, and the 
country thrown open to emigration and settlement. . . . 

. . . The decision of this question involves the constitu- 
tional power of Congress to pass laws prescribing and regulat- 
ing the domestic institutions of the various territories of the 
Union. In the opinion of those eminent statesmen, who hold 
that Congress is invested with no rightful authority to legislate 
upon the subject of slavery in the territories, the 8th section 
of the act preparatory to the admission of Missouri is null 
and void ; while the prevailing sentiment in large portions of 
the Union sustains the doctrine that the Constitution of the 
United States secures to every citizen an inalienable right to 
move into any of the territories with his property, of whatever 
kind and description, and to hold and enjoy the same under the 
sanction of law. Your committee do not feel themselves called 
upon to enter into the discussion of these controverted ques- 
tions. They involve the same grave issues which produced the 
agitation, the sectional strife, and the fearful struggle of 1850. 
As Congress deemed it wise and prudent to refrain from decid- 
ing the matters in controversy then, either by affirming or re- 
pealing the Mexican laws, or by an act declaratory of the true 
intent of the Constitution and the extent of the protection af- 
forded by it to slave property in the territories, so your com- 
mittee are not prepared now to recommend a departure from 



POPULAR SOVEREIGNTY 429 

the course pursued on that memorable occasion, either by 
aflS.rming or repealing the 8th section of the Missouri act, or by 
any act declaratory of the meaning of the Constitution in 
respect to the legal points in dispute. 

Your committee deem it fortunate for the peace of the coun- 
try, and the security of the Union, that the controversy then 
resulted in the adoption of the compromise measures, which the 
two great political parties, with singular unanimity, have af- 
firmed as a cardinal article of their faith, and proclaimed to the 
world, as a final settlement of the controversy and an end of the 
agitation. A due respect, therefore, for the avowed opinions of 
Senators, as well as a proper sense of patriotic duty, enjoins 
upon your committee the propriety and necessity of a strict 
adherence to the principles, and even a literal adoption of the 
enactments of that adjustment in all their territorial bills, 
so far as the same are not locally inapplicable. . . . 

From these provisions it is apparent that the compromise 
measures of 1850 affirm and rest upon the following proposi- 
tions — First : That all questions pertaining to slavery in the 
territories, and in the new States to be formed therefrom, are to 
be left to the decision of the people residing therein, by their 
appropriate representatives, to be chosen by them for that 
purpose. 

Second : That " all cases involving title to slaves," and "ques- 
tions of personal freedom" are referred to the adjudication of 
the local tribunals, with the right of appeal to the Supreme 
Court of the United States. 

Third : That the provisions of the Constitution of the United 
States, in respect to fugitives from service, is to be carried into 
faithful execution in all "the organized territories " the same as 
in the States. The substitute for the bill which your committee 
have prepared, and which is commended to the favorable action 
of the Senate, proposes to carry these propositions and prin- 
ciples into practical operation, in the precise language of the 
compromise measures of 1850. 



430 SLAVERY AND THE CONSTITUTION 

136. Senator Everett on the Principle of the Legislation of 

1850. ' 

The Missouri restriction of 1820, it is said, is inconsistent 
with the principle of the legislation of 1850. If anything more is 
meant by "the principle" of the legislation of 1850, than the 
measures which were adopted at that time in reference to the 
Territories of New Mexico and Utah — for I may assume that 
those are the legislative measures referred to — if anything 
more is meant than that a certain measure was adopted, and 
enacted in reference to those Territories, I take issue on that 
point. I do not know that it could be proved that, even in refer- 
ence to those Territories, a principle was enacted at all. A cer- 
tain measure, or, if you please, a course of measures, was en- 
acted in reference to the Territories of New Mexico and Utah ; 
but I do not know that you can call this enacting a principle. 
It is certainly not enacting a principle which is to carry with 
it a rule for other Territories lying in other parts of the country, 
and in a different legal position. As to the principle of non- 
intervention on the part of Congress in the question of slavery, 
I do not find that, either as principle or as measure, it was en- 
acted in those territorial bills of 1850. I do not, unless I have 
greatly misread them, find that there is anything at all which 
comes up to that. Every legislative act of those territorial 
governments must come before Congress for allowance or dis- 
allowance, and under those bills, without repealing them, with- 
out departing from them in the slightest degree, it would be com- 
petent for Congress to-morrow to pass any law on that subject. 

How then can it be said that the principle of non-interven- 
tion on the part of Congress in the subject of slavery was en- 
acted and established by the compromise measures of 1850? 
But, whether that be so or not, how can you find, in a simple 
measure applying in terms to these individual Territories, and 
to them alone, a rule which is to govern all other Territories 
with a retrospective and with a prospective action ? Is it not a 

^ Februarys, 1854. Congressional Globe, S3 Cong., i Sess., App., 160-62 
passim. 



POPULAR SOVEREIGNTY 431 

mere begging of the question to say that those compromise 
measures, adopted in this specific case, amount to such a 
general rule ? 

But, let us try it in a parallel case. In the earlier land legis- 
lation of the United States, it was customary, without excep- 
tion, when a territory became a State, to require that there 
should be a stipulation in their State constitution that the pub- 
lic lands sold within their borders should be exempted from 
taxation for five years after the sale. This, I believe, continued 
to be the uniform practice down to the year 1820, when the 
State of Missouri was admitted. She was admitted under this 
stipulation. If I mistake not, the next State which was ad- 
mitted into the Union — but it is not important whether it was 
the next or not — came in without that stipulation, and they 
were left free to tax the public lands the moment when they 
were sold. Here was a principle; as much a principle as it is 
contended was established in the Utah and New Mexico ter- 
ritorial bill; but did any one suppose that it acted upon the 
other Territories ? I believe the whole system is now abolished 
under the operation of general laws, and the influence of that 
example may have led to the change. But, until it was made by 
legislation, the mere fact that pubHc lands sold in Arkansas, 
were immediately subject to taxation, could not alter the law in 
regard to the public lands sold in Missouri, or in any other 
State where they were exempt. 

There is a case equally analogous to the very matter we are 
now considering — the prohibition or permission of slavery. 
The ordinance of 1787 prohibited slavery in the territory north- 
west of the Ohio. In 1 790 Congress passed an act accepting the 
cession which the State of North Carolina had made of the 
western part of her territory, with the proviso, that in reference 
to the territory thus ceded Congress should pass no laws "tend- 
ing to the emancipation of slaves." Here was a precisely paral- 
lel case. Here was territory in which, in 1787, slavery was pro- 
hibited. Here was territory ceded by North Carolina, which 
became the territory of the United States south of the Ohio, in 
reference to which it was stipulated with North Carolina, that 



432 SLAVERY AND THE CONSTITUTION 

Congress should pass no laws tending to the emancipation of 
slaves. But I believe it never occurred to any one that the legis- 
lation of 1790 acted back upon the ordinance of 1787, or fur- 
nished a rule by which any effect could be produced upon the 
state of things existing under that ordinance, in the territory to 
which it apphed. . . . 

Look at the words of the acts themselves. They are specific. 
They give you boundaries. The lines are run. The Territories 
are geographically marked out. They fill a particular place on 
the map of the continent ; and it is provided that within those 
specific geographical limits a certain state of things, with refer- 
ence to slavery shall exist. That is all. There is not a word 
which states on what principle that is done. There is not a 
word to tell you that that state of things carries with it a rule 
which is to operate elsewhere — retrospectively upon territory 
acquired in 1803, and prospectively on territory that shall be 
acquired to the end of time. There is not a word to carry the 
operation of those measures over the geographical boundary 
which is laid down in the bills themselves. 

It would be singular if, under any circumstances the meas- 
ures adopted should have this extended effect, without any 
words to indicate it. It would be singular, if there was nothing 
that stood in the way; but when you consider that there is a 
positive enactment in the way — the eighth section of the 
Missouri law, which you now propose to repeal because it does 
stand in the way — how can you think that these enactments 
of 1850 in reference to Utah and New Mexico were intended 
to overleap these boundaries in the face of positive law to the 
contrary, and to fall upon and decide the organization of Terri- 
tories in a region purchased from France nearly fifty years 
before, and subject to a distinct specific legislative provision. 

. . . Sir, it is to me a most singular thing that words of ex- 
tension in 1854 should be thought necessary in this bill to 
give the effect supposed to have been intended to the provis- 
ions of the acts of 1850, and that it should not be thought 
necessary in 1850 to put these words of extension into the 
original bills themselves. 



POPULAR SOVEREIGNTY 433 

Now, sir, let us look at the debates which took place at that 
time, because of course, one may always gather much more 
from the debates on one side and the other on any great ques- 
tion, as to the intention and meaning of a law, than can be 
gathered from the words of the statute itself. I have not had 
time to read these debates fully. That is what I complained of 
in the beginning. I have not had time to read, as thoroughly as 
I could wish, those voluminous reports — for they fill the 
greater part of two or three thick quarto volumes; but in what I 
have read, I do not find a single word from which it appears 
that any member of the Senate or House of Representatives, at 
that time, believed that the territorial enactments of 1850, 
either as principle, or rule, or precedent, or by analogy, or in 
any other way, were to act retrospectively or prospectively 
upon any other Territory. On the contrary, I find much, very 
much, of a broad, distinct, directly opposite bearing. . . . 

A single word, sir, in respect to this supposed principle of 
non-intervention on the part of Congress in the subject of slav- 
ery in the Territories. . . . Why, sir, from the first enactment 
in 1789, down to the bill before us, there is no such principle in 
our legislation. As far as I can see it would be perfectly compet- 
ent even now for Congress to pass any law that they pleased 
on the subject in the Territories under this bill. But, however 
that may be, even by this bill, there is not a law which the 
Territories can pass, admitting or excluding slavery, which it 
is not in the power of this Congress to disallow the next day. 
This is not a mere brutum fulmen. It is not an unexecuted 
power. Your statute-book shows case after case. I believe, in 
reference to a single Territory, that there have been fifteen or 
twenty cases where territorial legislation has been disallowed 
by Congress. . . . 

137. Senator Douglas on the Principle of Popular Sovereignty} 

The principle which we propose to carry into effect by the 
bill is this: That Congress shall neither legislate slavery into 

^ March 3, 1854. Congressional Globe, 33 Cong., i Sess., App., 326-37 
passim. 



434 SLAVERY AND THE CONSTITUTION 

any Territories or State, nor out of the same; but the people 
shall be left free to regulate their domestic concerns in their 
own way, subject only to the Constitution of the United States. 

In order to carry this principle into practical operation, it 
becomes necessary to remove whatever legal obstacles might be 
found in the way of its free exercise. It is only for the purpose 
of carrying out this great fundamental principle of self-govern- 
ment that the bill renders the eighth section of the Missouri act 
inoperative and void. . . . 

Any Senator who will take the trouble to examine our Jour- 
nals, will find that on the 25th of March of that year I reported 
from the Committee on Territories two bills including the fol- 
lowing measures : the admission of Cahfornia, a territorial gov- 
ernment for Utah, a territorial government for New Mexico, 
and the adjustment of the Texas boundary. These bills pro- 
posed to leave the people of Utah and New Mexico free to de- 
cide the slavery question for themselves, in the precise language 
of the Nebraska bill now under discussion. A few weeks after- 
wards the committee of thirteen took those two bills and put a 
wafer between them, and reported them back to the Senate as 
one bill, with some slight amendments. One of those amend- 
ments was, that the Territorial Legislatures should not legislate 
upon the subject of African slavery. I objected to that provi- 
sion upon the ground that it subverted the great principle of 
self-government upon which the bill had been originally framed 
by the Territorial Committee. On the first trial, the Senate 
refused to strike it out, but subsequently did so, after full de- 
bate, in order to estabhsh that principle as the rule of action in 
territorial organization. ... 

Upon this point I trust I will be excused for reading one or 
two sentences from some remarks I made in the Senate on the 
3d of June, 1850: 

"The position that I have ever taken has been that this [the 
slavery question], and all questions relating to the domestic 
affairs and domestic policy of the Territories, ought to be left 
to the decision of the people themselves, and that we ought to 
be content with whatever way they would decide the question, 



POPULAR SOVEREIGNTY 435 

because they have a much deeper interest in these matters than 
we have, and know much better what institutions suit them 
than we, who have never been there, can decide for them." . . . 

Now, sir, what becomes of the declaration which has been 
made by nearly every opponent of this bill, that nobody in this 
whole Union ever dreamed that the principle of the Utah and 
New Mexican bill was to be incorporated into all future terri- 
torial organizations ? . . . 

Now, sir, if these gentlemen have entire confidence in the 
correctness of their own position, why do they not meet the 
issue boldly and fairly, and controvert the soundness of this 
great principle of popular sovereignty in obedience to the Con- 
stitution ? They know full well that this was the principle upon 
which the colonies separated from the crown of Great Britain; 
the principle upon which the battles of the Revolution were 
fought, and the principle upon which our republican system 
was founded. They cannot be ignorant of the fact, that the 
Revolution grew out of the assertion of the right on the part 
of the imperial Government to interfere with the internal afl'airs 
and domestic concerns of the colonies. . . . 

I will not weary the Senate in multiplying evidence upon this 
point. It is apparent that the Declaration of Independence had 
its origin in the violation of that great fundamental principle 
which secured to the people of the colonies the right to regulate 
their own domestic affairs in their own way; and that the Revo- 
lution resulted in the triumph of that principle, and the recog- 
nition of the right asserted by it. . . . It is the same doctrine, 
when applied to the Territories and new States of this Union, 
which the British Government attempted to enforce by the 
sword upon the American colonies. It is this fundamental 
principle of self-government which constitutes the distinguish- 
ing feature of the Nebraska bill. . . . 



CHAPTER XLVII 

DRED SCOTT V. SANDFORD 

The pertinent facts in the history of the Dred Scott case may be briefly 
stated. Dred Scott, a negro belonging to Dr. Emerson, of the United 
States Army, had been taken by his master in 1834 from Missouri to Rock 
Island in the State of Illinois. Two years later he was taken to Fort 
Snelling in the northern part of the territory acquired from France in 
1803, in which slavery had been forbidden by the Missouri Compromise. 
He there married. In 1838, Dr. Emerson returned to Missouri with Scott 
and his family. In 1847, Dred Scott brought suit in the circmt court of 
the State of Missouri to recover his freedom. Judgment was rendered in 
his favor, but in the supreme court of the State, to which the case was 
taken on appeal, the judgment was reversed. Meantime Scott and his 
family had been made over to Sandford, a citizen of New York; and 
though his case was still in the state court, he brought suit against Sand- 
ford to assert the title of himself and his family to freedom. The case of 
Scott V. Sandford — in form a suit between citizens of different States 
— was tried in the Circuit Court of the United States for the district of 
Missouri. Sandford pleaded that this could not be a suit between citizens 
of different States because Scott was not a citizen of Missouri, being "a 
negro of pure African descent." The court overruled this plea, but sus- 
tained the defendant on other grounds. The case was then appealed on 
writ of error to the Supreme Court of the United States. Seven of the 
nine judges concurred in the judgment that Scott was not a citizen of 
Missouri and that therefore the Circuit Court had no jurisdiction in the 
case; six judges concurred in declaring the Missouri Compromise uncon- 
stitutional. What is commonly called the opinion of the Court hardly 
merits the term, for none of the concurring judges accepted fully the 
process of reasoning by which the Chief Justice justified the judgment of 
the Court. On the technical question as to whether the plea in abatement 
was properly before the Court and on the further question as to the 
propriety of the so-called dictum relating to the Missouri Compromise, 
the reader may consult with profit an article on "The Dred Scott De- 
cision," by Edward S. Corbin, in the American Historical Review for 
October, 191 1. Extracts from Justice Curtis's dissenting opinion are 
appended to indicate the issue between him and Chief Justice Taney as 
to the sources of citizenship within the recognition of the Constitution. 

138. Dred Scott, Plaintiff in Error, v. John F. A. Sandford.'^ 
Mr. Chief Justice Taney delivered the opinion of the Court: 

^ Supreme Court of the United States, 1857. 19 Howard, 393. 



DRED SCOTT v. SANDFORD 437 

There are two leading questions presented by the record : 

1. Had the Circuit Court of the United States jurisdiction to 
hear and determine the case between these parties? And 

2. If it had jurisdiction, is the judgment it has given errone- 
ous or not? . . . 

Before we speak of the pleas in bar, it will be proper to dispose 
of the questions which have arisen on the plea in abatement. 

That plea denies the right of the plaintiff to sue in a court of 
the United States, for the reasons therein stated. ... It is 
suggested, however, that this plea is not before us. . . . We 
think they [the plea and the judgment of the court upon it] are 
before us . . . and it becomes, therefore, our duty to decide 
whether the facts stated in the plea are or are not sufficient to 
show that the plaintiff is not entitled to sue as a citizen in a 
court of the United States. . . . 

The question is simply this: Can a negro, whose ancestors 
were imported into this country, and sold as slaves, become a 
member of the political community formed and brought into 
existence by the Constitution of the United States, and as such 
become entitled to all the rights, privileges and immunities, 
guarantied by that instrument to the citizen? One of which 
rights is the privilege of suing in a court of the United States in 
the cases specified in the Constitution. . . . 

In discussing this question, we must not confound the 
rights of citizenship which a State may confer within its own 
limits, and the rights of citizenship as a member of the Union. 
It does not by any means follow, because he has all the rights 
and privileges of a citizen of a State, that he must be a citizen of 
the United States. He may have all the rights and privileges of 
the citizen of a State, and yet not be entitled to the rights and 
privileges of a citizen in any other State. For, previous to the 
adoption of the Constitution of the United States, every State 
had the undoubted right to confer on whomsoever it pleased 
the character of citizen, and to endow him with all its rights. 
But this character of course was confined to the boundaries of 
the State, and gave him no rights or privileges in other States 
beyond those secured to him by the laws of nations and the 



438 SLAVERY AND THE CONSTITUTION 

comity of States. Nor have the several States surrendered the 
power of conferring these rights and privileges by adopting the 
Constitution of the United States. Each State may still confer 
them upon an alien, or any one it thinks proper, or upon any 
class or description of persons ; yet he would not be a citizen in 
the sense in which that word is used in the Constitution of the 
United States, nor entitled to sue as such in one of its courts, 
nor to the privileges and immunities of a citizen in the other 
States. The rights which he would acquire would be restricted 
to the State which gave them. The Constitution has conferred 
on Congress the right to estabhsh an uniform rule of naturaliza- 
tion, and this right is evidently exclusive, and has always been 
held by this court to be so. Consequently, no State, since the 
adoption of the Constitution, can, by naturalizing an alien, 
invest him with the rights and privileges secured to a citizen 
of a State under the Federal Government, although, so far as 
the State alone was concerned, he would undoubtedly be en- 
titled to the rights of a citizen, and clothed with all the rights 
and immunities which the Constitution and laws of the State 
attached to that character. . . . 

It is true, every person, and every class and description of 
persons, who were at the time of the adoption of the Constitu- 
tion recognized as citizens in the several States, became also 
citizens of this new poHtical body; but none other; it was 
formed by them,, and for them and their posterity, but for no 
one else. And the personal rights and privileges guarantied to 
citizens of this new sovereignty were intended to embrace those 
only who were then members of the several State communities, 
or who should afterwards, by birthright or otherwise, become 
members, according to the provisions of the Constitution and 
the principles on which it was founded. . . . 

It becomes necessary, therefore, to determine who were citi- 
zens of the several States when the Constitution was adopted. 
And in order to do this, we must recur to the Governments and 
institutions of the thirteen colonies, when they separated from 
Great Britain and formed new sovereignties, and took their 
places in the family of independent nations. . . . 



DRED SCOTT v. SANDFORD 439 

In the opinion of the court, the legislation and histories of the 
times, and the language used in the Declaration of Indepen- 
dence, show, that neither the class of persons who had been 
imported as slaves, nor their descendants, whether they had 
become free or not, were then acknowledged as a part of the 
people, nor intended to be included in the general words used 
in that memorable instrument. ... 

They had for more than a century before been regarded as 
beings of an inferior order, and altogether unfit to associate 
with the white race, either in social or poHtical relations ; and so 
far inferior, that they had no rights which the white man was 
bound to respect; and that the negro might justly and lawfully 
be reduced to slavery for his benefit. . . . 

The legislation of the States therefore shows, in a manner not 
to be mistaken, the inferior and subject condition of that race 
at the time the Constitution was adopted, and long afterwards, 
throughout the thirteen States by which that instrument was 
framed ; and it is hardly consistent with the respect due to these 
States, to suppose that they regarded at that time, as fellow- 
citizens and members of the sovereignty, a class of beings whom 
they had thus stigmatized; whom, as we are bound, out of 
respect to the State sovereignties, to assume they had deemed 
it just and necessary thus to stigmatize, and upon whom they 
had impressed such deep and enduring marks of inferiority and 
degradation ; or, that when they met in convention to form the 
Constitution, they looked upon them as a portion of their con- 
stituents, or designed to include them in the provisions so care- 
fully inserted for the security and protection of the liberties and 
rights of their citizens. It cannot be supposed that they in- 
tended to secure to them rights, and privileges, and rank, in the 
new political body throughout the Union, which every one of 
them denied within the limits of its own dominion. More 
especially, it cannot be believed that the large slave-holding 
States regarded them as included in the word citizens, or would 
have consented to a constitution which might compel them to 
receive them in that character from another State. . . . 

To all this mass of proof we have still to add, that Congress 



440 SLAVERY AND THE CONSTITUTION 

has repeatedly legislated upon the same construction of the 
Constitution that we have given. . . . 

The conduct of the Executive Department of the Govern- 
ment has been in perfect harmony upon this subject with this 
course of legislation. . . . 

And upon a full and careful consideration of the subject, the 
court is of opinion, that, upon the facts stated in the plea in 
abatement, Dred Scott was not a citizen of Missouri within 
the meaning of the Constitution of the United States, and not 
entitled as such to sue in its courts; and, consequently, that the 
Circuit Court had no jurisdiction of the case, and that the 
judgment on the plea in abatement is erroneous. . . . 

We proceed, therefore, to inquire whether the facts reHed 
on by the plaintiff entitled him to his freedom. . . . 

In considering this part of the controversy, two questions 
arise: i. Was he, together with his family, free in Missouri 
by reason of the stay in the territory of the United States 
hereinbefore mentioned? And 2. If they were not, is Scott 
himself free by reason of his removal to Rock Island, in the 
State of Illinois, as stated in the above admissions? 

We proceed to examine the first question. 

The counsel for the plaintiff has laid much stress upon that 
article in the Constitution which confers on Congress the 
power "to dispose of and make all needful rules and regula- 
tions respecting the territory or other property belonging to the 
United States;" but, in the judgment of the court, that provi- 
sion has no bearing on the present controversy, and the power 
there given, whatever it may be, is confined, and was intended 
to be confined, to the territory which at that time belonged to, 
or was claimed by, the United States, and was within their 
boundaries as settled by the treaty with Great Britain, and can 
have no influence upon a territory afterwards acquired from a 
foreign Government. It was a special provision for a known 
and particular territory, and to meet a present emergency, and 
nothing more. . . . 

At the time when the territory in question was obtained by 
cession from France, it contained no population fit to be asso- 



DRED SCOTT v. SANDFORD 441 

dated together and admitted as a State; and it therefore was 
absolutely necessary to hold possession of it, as a Territory 
belonging to the United States, until it was settled and inhab- 
ited by a civilized community capable of self-government, and 
in a condition to be admitted on equal terms with the other 
States as a member of the Union. But, as we have before said, 
it was acquired by the General Government, as the representa- 
tive and trustee of the people of the United States, and it must 
therefore be held in that character for their common and equal 
benefit; for it was the people of the several States, acting 
through their agent and representative, the Federal Govern- 
ment, who in fact acquired the Territory in question, and the 
Government holds it for their common use until it shall be 
associated with the other States as a member of the Union. 

But until that time arrives, it is undoubtedly necessary that 
some Government should be established, in order to organize 
society, and to protect the inhabitants in their persons and 
property; and as the people of the United States could act in 
this matter only through the Government which represented 
them, and through which they spoke and acted when the 
Territory was obtained, it was not only within the scope of its 
powers, but it was its duty to pass such laws and establish 
such a Government as would enable those by whose authority 
they acted to reap the advantages anticipated from its acquisi- 
tion, and to gather there a population which would enable it 
to assume the position to which it was destined among the 
States of the Union. . . . But the power of Congress over the 
person or property of a citizen can never be a mere discretion- 
ary power under our Constitution and form of Government. 
The powers of the Government and the rights and privileges 
of the citizen are regulated and plainly defined by the Consti- 
tution itself. . . . Thus the rights of property are united with 
the rights of person, and placed on the same ground by the fifth 
amendment to the Constitution, which provides that no person 
shall be deprived of life, liberty, and property, without due 
process of law. And an act of Congress which deprives a citizen 
of the United States of his liberty or property, merely because 



442 SLAVERY AND THE CONSTITUTION 

he came himself or brought his property into a particular 
Territory of the United States, and who had committed no 
offense against the laws, could hardly be dignified with the 
name of due process of law. . . . 

Now, as we have already said in an earlier part of this 
opinion, upon a different point, the right of property in a slave 
is distinctly and expressly affirmed in the Constitution. The 
right to traffic in it, like an ordinary article of merchandise and 
property, was guaranteed to the citizens of the United States, 
in every State that might desire it, for twenty years. And the 
Government in express terms is pledged to protect it in all 
future time, if the slave escapes from his owner. This is done 
in plain words — too plain to be misunderstood. And no word 
can be found in the Constitution which gives Congress a greater 
power over slave property, or which entitles property of that 
kind to less protection than property of any other description. 
The only power conferred is the power coupled with the duty 
of guarding and protecting the owner in his rights. 

Upon these considerations, it is the opinion of the court that 
the act of Congress which prohibited a citizen from holding 
or owning property of this kind in the territory of the United 
States north of the line therein mentioned, is not warranted 
by the Constitution, and is therefore void; and that neither 
Dred Scott himself, nor any of his family, were made free by 
being carried into this territory; even if they had been carried 
there by the owner, with the intention of becoming a perma- 
nent resident. . . . 

But there is another point in the case which depends upon 
State power and State law. And it is contended, on the part 
of the plaintiff, that he is made free by being taken to Rock 
Island, in the State of Illinois, independently of his residence 
in the territory of the United States; and being so made free, 
he was not again reduced to a state of slavery by being brought 
back to Missouri. 

Our notice of this part of the case will be very brief; for the 
principle on which it depends was decided in this court, upon 
much consideration, in the case of Strader et al. v. Graham, 



DRED SCOTT v. SANDFORD 443 

reported in loth Howard, 82. In that case, the slaves had been 
taken from Kentucky to Ohio, with the consent of the owner, 
and afterwards brought back to Kentucky. And this court 
held that their status or condition, as free or slave, depended 
upon the laws of Kentucky, when they were brought back into 
that State, and not of Ohio ; and that this court had no juris- 
diction to revise the judgment of a State court upon its own 
laws. . . . 

So in this case. As Scott was a slave when taken into the 
State of Illinois by his owner, and was there held as such, and 
brought back in that character, his status, as free or slave, 
depended on the laws of Missouri, and not of Illinois. . . . 

Upon the whole, therefore, it is the judgment of this court, 
that it appears by the record before us, that the plaintiff in 
error is not a citizen of Missouri, in the sense in which that word 
is used in the Constitution; and that the Circuit Court 
of the United States, for that reason, had no jurisdiction in 
the case, and could give no judgment in it. Its judgment for 
the defendant must, consequently, be reversed, and a mandate 
issued, directing the suit to be dismissed for want of jurisdiction. 

Dissenting Opinion of Justice Curtis} 

. . . One mode of approaching this question is, to inquire 
who were citizens of the United States at the time of the 
adoption of the Constitution. 

Citizens of the United States at the time of the adoption of 
the Constitution can have been no other than the citizens of 
the United States under the Confederation. . . . 

To determine whether any free persons, descended from 
Africans held in slavery, were citizens of the United States 
under the Confederation, and consequently at the time of the 
adoption of the Constitution of the United States, it is only 
necessary to know whether any such persons were citizens of 
either of the States under the Confederation at the time of the 
adoption of the Constitution. 

Of this there can be no doubt. At the time of the ratification 
^ 19 Howard, 393. 



444 SLAVERY AND THE CONSTITUTION 

of the Articles of Confederation, all free native-born inhabitants 
of the States of New Hampshire, Massachusetts, New York, 
New Jersey and North Carolina, though descended from Af- 
rican slaves, were not only citizens of those States, but such 
of them as had the other necessary qualifications possessed the 
franchise of electors, on equal terms with other citizens. . . . 

I can find nothing in the Constitution which, propria vigore, 
deprives of their citizenship any class of persons who were 
citizens of the United States at the time of its adoption, or who 
should be native-born citizens of any State after its adoption; 
nor any power enabling Congress to disfranchise persons born 
on the soil of any State, and entitled to citizenship of such 
State by its constitution and laws. And my opinion is, that, 
under the Constitution of the United States, every free person 
born on the soil of a State, who is a citizen of that State by 
force of its constitution or laws, is also a citizen of the United 
States. . . . 

The Constitution having recognized the rule that persons 
born within the several States are citizens of the United States, 
one of four things must be true: 

First. That the Constitution itself has described what 
native-born persons shall or shall not be citizens of the United 
States; or. 

Second. That it has empowered Congress to do so; or, 

Third. That all free persons, born within the several States, 
are citizens of the United States; or, 

Fourth. That it is left to each State to determine what free 
persons, born within its limits, shall be citizens of such State, 
and thereby be citizens of the United States. . . . 

The conclusions at which I have arrived on this part of the 
case are: 

First. That the free native-born citizens of each State are 
citizens of the United States. 

Second. That as free colored persons born within some of the 
States are citizens of those States, such persons are also citi- 
zens of the United States. 

Third. That every such citizen, residing in any State, has 



DRED SCOTT v. SANDFORD 445 

the right to sue and is liable to be sued in the federal courts, 
as a citizen of that State in which he resides. 

Fourth. That as the plea to the jurisdiction in this case shows 
no facts, except that the plaintiff was of African descent, and 
his ancestors were sold as slaves, and as these facts are not 
inconsistent with his citizenship of the United States, and his 
residence in the State of Missouri, the plea to the jurisdiction 
was bad, and the judgment of the Circuit Court overruling it 
was correct. 

I dissent, therefore, from that part of the opinion of the 
majority of the court, in which it is held that a person of 
African descent cannot be a citizen of the United States; . . . 



CHAPTER XLVIII 

POPULAR SOVEREIGNTY AND THE DRED SCOTT DECISION 

The peculiar merit claimed for the Kansas-Nebraska Bill was that it 
would rid Congress of a vexatious question by providing for a popular 
referendum on slavery in the Territories. Two circumstances prevented 
a fair test of this device: the bitter and unexpected struggle between 
the pro-slavery and free-soil settlers in Kansas, and the decision of the 
Supreme Court in the case of Dred Scott. Whatever efficacy might still 
be claimed for popular sovereignty, it could hardly stand as a principle 
of public law after the Supreme Court had registered its opinion that 
Congress might not prohibit slavery in the Territories. The senatorial 
contest between Douglas and Lincoln in Illinois brought out the various 
aspects of the constitutional question. The candidates met in seven joint 
debates through the State. In the opening debate at Ottawa, Lincoln 
propounded the crucial question to which Douglas made reply at Free- 
port in the second encounter. The concluding extract is from a speech 
made by Lincoln at Columbus, Ohio, in the following year. 

139. The Freeport Doctrine.^ 

The next question propounded to me by Mr. Lincoln is, 
Can the people of a Territory in any lawful way, against the 
wishes of any citizen of the United States, exclude slavery from 
their limits prior to the formation of a State constitution? I 
answer emphatically, as Mr. Lincoln has heard me answer a 
hundred times from every stump in Illinois, that in my opinion 
the people of a Territory can, by lawful means, exclude slavery 
from their limits prior to the formation of a State constitution. 
Mr. Lincoln knew that I had answered that question over and 
over again. He heard me argue the Nebraska bill on that 
principle all over the State in 1854, in 1855, and in 1856, and 
he has no excuse for pretending to be in doubt as to my position 
on that question. It matters not what way the Supreme Court 
may hereafter decide as to the abstract question whether slav- 
ery may or may not go into a Territory under the Constitution, 

1 Speech of Douglas at Freeport, August 27, 1858. The Lincoln- 
Douglas Debates of 1858 (Sparks ed.), 161-62. 



DRED SCOTT DECISION 447 

the people have the lawful means to introduce it or exclude it 
as they please, for the reason that slavery cannot exist a day 
or an hour anywhere, unless it is supported by local police 
regulations. Those poHce regulations can only be estabhshed 
by the local legislature; and if the people are opposed to slavery, 
they will elect representatives to that body who will by un- 
friendly legislation effectually prevent the introduction of it 
into their midst. If, on the contrary, they are for it, their 
legislation will favor its extension. Hence, no matter what the 
decision of the Supreme Court may be on that abstract ques- 
tion, still the right of the people to make a Slave Territory or a 
Free Territory is perfect and complete under the Nebraska 
bill. I hope Mr. Lincoln deems my answer satisfactory on that 
point. 

140. Lincoln's Reply at Joneshoro} 

The second interrogatory that I propounded to him was 
this : — 

"Question 2. Can the people of a United States Territory, in any 
lawful way, against the wish of any citizen of the United States, exclude 
slavery from its limits prior to the formation of a State Constitution? " 

To this Judge Douglas answered that they can lawfully 
exclude slavery from the Territory prior to the formation of a 
Constitution. He goes on to tell us how it can be done. As I 
understand him, he holds that it can be done by the Territorial 
Legislature refusing to make any enactments for the protection 
of slavery in the Territory, and especially by adopting un- 
friendly legislation to it. For the sake of clearness, I state it 
again: that they can exclude slavery from the Territory, ist, 
by withholding what he assumes to be an indispensable assist- 
ance to it in the way of legislation; and, 2d, by unfriendly 
legislation. If I rightly understand him, I wish to ask your 
attention for a while to his position. 

In the first place, the Supreme Court of the United States 
has decided that any Congressional prohibition of slavery in 
the Territories is unconstitutional ; that they have reached this 
^ September 15. The Lincoln-Douglas Debates of 1858, 242-45. 



448 SLAVERY AND THE CONSTITUTION 

proposition as a conclusion from their former proposition, that 
the Constitution of the United States expressly recognizes 
property in slaves, and from that other Constitutional provi- 
sion, that no person shall be deprived of property without due 
process of law. Hence they reach the conclusion that as the 
Constitution of the United States expressly recognizes property 
in slaves, and prohibits any person from being deprived of 
property without due process of law, to pass an Act of Congress 
by which a man who owned a slave on one side of a line would 
be deprived of him if he took him on the other side, is depriving 
him of that property without due process of law. That I under- 
stand to be the decision of the Supreme Court. I understand 
also that Judge Douglas adheres most firmly to that decision; 
and the difficulty is, how is it possible for any power to exclude 
slavery from the Territory, unless in violation of that decision? 
That is the difficulty. 

In the Senate of the United States, in 1856, Judge Trumbull, 
in a speech substantially, if not directly, put the same inter- 
rogatory to Judge Douglas, as to whether the people of a 
Territory had the lawful power to exclude slavery prior to the 
formation of a constitution. Judge Douglas then answered at 
considerable length, and his answer will be found in the Con- 
gressional Globe, under date of June 9th, 1856. The Judge said 
that whether the people could exclude slavery prior to the 
formation of a constitution or not was a question to be decided 
by the Supreme Court. He put that proposition, as will be seen 
by the Congressional Globe, in a variety of forms, all running 
to the same thing in substance, — that it was a question for 
the Supreme Court. I maintain that when he says, after the 
Supreme Court have decided the question, that the people may 
yet exclude slavery by any means whatever, he does virtually 
say that it is not a question for the Supreme Court. 

He shifts his ground. I appeal to you whether he did not say 
it was a question for the Supreme Court? Has not the Supreme 
Court decided that question? When he now says the people 
may exclude slavery, does he not make it a question for the 
people? Does he not virtually shift his ground and say that it is 



DRED SCOTT DECISION 449 

not a question for the court, but for the people? This is a very- 
simple proposition, — a very plain and naked one. It seems to 
me that there is no difficulty in deciding it. In a variety of ways 
he said that it was a question for the Supreme Court. He did 
not stop then to tell us that whatever the Supreme Court decides, 
the people can by withholding necessary "police regulations" 
keep slavery out. He did not make any such answer. I submit 
to you now whether the new state of the case has not induced 
the Judge to sheer away from his original ground. Would not 
this be the impression of every fair-minded man? 

I hold that the proposition that slavery cannot enter a new 
country without police regulations is historically false. It is 
not true at all. I hold that the history of this country shows 
that the institution of slavery was originally planted upon this 
continent without these "police regulations" which the Judge 
now thinks necessary for the actual establishment of it. Not 
only so, but is there not another fact : how came this Dred Scott 
decision to be made? It was made upon the case of a negro 
being taken and actually held in slavery in Minnesota Terri- 
tory, claiming his freedom because the Act of Congress pro- 
hibited his being so held there. Will the Judge pretend that Dred 
Scott was not held there without police regulations ? There is at 
least one matter of record as to his having been held in slavery 
in the Territory, not only without police regulations, but in the 
teeth of Congressional legislation supposed to be valid at the 
time. This shows that there is vigor enough in slavery to plant 
itself in a new country even against unfriendly legislation. It 
takes not only law, but the enforcement of law to keep it out. 
That is the history of this country upon the subject. 

I wish to ask one other question. It being understood that the 
Constitution of the United States guarantees property in slaves 
in the Territories, if there is any infringement of the right of 
that property, would not the United States courts, organized for 
the government of the Territory, apply such remedy as might 
be necessary in that case? It is a maxim held by the courts 
that there is no wrong without its remedy ; and the courts have 
a remedy for whatever is acknowledged and treated as a wrong. 



450 SLAVERY AND THE CONSTITUTION 

Again: I will ask you, my friends, if you were elected mem- 
bers of the Legislature, what would be the first thing you would 
have to do before entering upon your duties? Swear to 
' support the Constitution of the United States. Suppose you be- 
lieve, as Judge Douglas does, that the Constitution of the 
United States guarantees to your neighbor the right to hold 
slaves in that Territory; that they are his property; hovv^ can 
you clear your oaths unless you give him such legislation as is 
necessary to enable him to enjoy that property? What do you 
understand by supporting the Constitution of a State, or of the 
United States? Is it not to give such constitutional helps to the 
rights established by that Constitution as may be practically 
needed? Can you, if you swear to support the Constitution, 
and believe that the Constitution establishes a right, clear your 
oath, without giving it support? Do you support the Constitu- 
tion if, knowing or believing there is a right established under it 
which needs specific legislation, you withhold that legislation? 
Do you not violate and disregard your oath? I can conceive of 
nothing plainer in the world. There can be nothing in the words 
"support the Constitution," if you may run counter to it by 
refusing support to any right established under the Constitu- 
tion. And what I say here will hold with still more force against 
the Judge's doctrine of "unfriendly legislation." How could 
you, having sworn to support the Constitution, and believing it 
guaranteed the right to hold slaves in the Territories, assist in 
legislation intended to defeat that right? That would be violating 
your own view of the Constitution. Not only so, but if you were 
to do so, how long would it take the courts to hold your votes 
unconstitutional and void? Not a moment. . . . 

141. Douglas'' s Rejoinder at Joneshoro} 

My doctrine is, that even taking Mr. Lincoln's view that the 
decision recognizes the right of a man to carry his slaves into 
the Territories of the United States if he pleases, yet after he 
gets there he needs affirmative law to make that right of any 

^ September 15, 1858. The Lincoln-Douglas Debates of 1858 (Sparks 
ed.), 258. 



DRED SCOTT DECISION 451 

value. The same doctrine not only applies to slave property, 
but all other kinds of property. Chief Justice Taney places it 
upon the ground that slave property is on an equal footing with 
other property. Suppose one of your merchants should move 
to Kansas and open a liquor store: he has a right to take groc- 
eries and liquors there; but the mode of selling them, and the 
circumstances under which they shall be sold, and all the 
remedies, must be prescribed by local legislation ; and if that is 
unfriendly, it will drive him out just as effectually as if there 
was a constitutional provision against the sale of liquor. So the 
absence of local legislation to encourage and support slave 
property in a Territory excludes it practically just as effectually 
as if there was a positive constitutional provision against it. 

Hence, I assert that under the Dred Scott decision you can- 
not maintain slavery a day in a Territory where there is an 
unwilling people and unfriendly legislation. If the people are 
opposed to it, our right is a barren, worthless, useless right; and 
if they are for it, they will support and encourage it. We come 
right back, therefore, to the practical question. If the people of 
a Territory want slavery, they will have it; and if they do not 
want it, you cannot force it on them. And this is the practical 
question, the great principle, upon which our institutions rest. 
I am willing to take the decision of the Supreme Court as it was 
pronounced by that august tribunal, without stopping to in- 
quire whether I would have decided that way or not. . . . 

142. Speech of Lincoln at Columbus, Ohio} 

... I wish to say something now in regard to the Dred Scott 
decision, as dealt with by Judge Douglas. In that "memorable 
debate" between Judge Douglas and myself, last year, the 
Judge thought fit to commence a process of catechising me, and 
at Freeport I answered his questions, and propounded some to 
him. Among others propounded to him was one that I have 
here now. The substance, as I remember it, is, " Can the people 
of a United States Territory, under the Dred Scott decision, in 

^ September, 1859. Political Debates between Lincoln and Douglas 
(Columbus, i860), 250-51 passim. 



452 SLAVERY AND THE CONSTITUTION 

any lawful way, against the wish of any citizen of the United 
States, exclude slavery from its limits, prior to the formation of 
a State Constitution?" He answered that they could lawfully 
exclude slavery from the United States Territories, notwith- 
standing the Dred Scott decision. There was something about 
that answer that has probably been a trouble to the Judge ever 
since. 

The Dred Scott decision expressly gives every citizen of the 
United States a right to carry his slaves into the United States 
Territories. And now there was some inconsistency in saying 
that the decision was right, and saying, too, that the people of 
the Territory could lawfully drive slavery out again. When all 
the trash, the words, the collateral matter, was cleared away 
from it — all the chaff was fanned out of it, it was a bare ab- 
surdity — no less than that a thing may be lawfully driven away 
from where it has a lawful right to be. Clear it of all the verbiage, 
and that is the naked truth of his proposition — that a thing 
may be lawfully driven from the place where it has a lawful 
right to stay. . . . 

But I undertake to give the opinion, at least, that if the Ter- 
ritories attempt by any direct legislation to drive the man with 
his slave out of the Territory, or to decide that his slave is free 
because of his being taken in there, or to tax him to such an 
extent that he cannot keep him there, the Supreme Court will 
unhesitatingly decide all such legislation unconstitutional, as 
long as that Supreme Court is constructed as the Dred Scott 
Supreme Court is. The first two things they have already 
decided, except that there is a little quibble among lawyers 
between the words dicta and decision. They have already 
decided a negro cannot be made free by territorial legisla- 
tion. . . . 

What is that Dred Scott decision? Judge Douglas labors to 
show that it is one thing, while I think it is altogether different. 
It is a long opinion, but it is all embodied in this short state- 
ment : "The Constitution of the United States forbids Congress 
to deprive a man of his property, without due process of law; 
the right of property in slaves is distinctly and expressly af- 



DRED SCOTT DECISION 453 

firmed in that Constitution ; therefore if Congress shall under- 
take to say that a man's slave is no longer his slave, when he 
crosses a certain line into a Territory, that is depriving him of 
his property without due process of law, and is unconstitu- 
tional." There is the whole Dred Scott decision. They add 
that if Congress cannot do so itself. Congress cannot confer any 
power to do so, and hence any effort by the Territorial Legis- 
lature to do either of these things is absolutely decided against. 
It is a foregone conclusion by that court. 

Now, as to this indirect mode by "unfriendly legislation," all 
lawyers here will readily understand that such a proposition 
cannot be tolerated for a moment, because a legislature cannot 
indirectly do that which it cannot accomplish directly. Then 
I say any legislation to control this property, as property, for its 
benefit as property, would be hailed by this Dred Scott Su- 
preme Court, and fully sustained ; but any legislation driving 
slave property out, or destroying it as property, directly or 
indirectly, will most assuredly, by that court, be held uncon- 
stitutional. . . . 



CHAPTER XLIX 

SECESSION AND COERCION 

The annual message of President Buchanan in i860 was drafted in the 
well-founded expectation that the convention summoned by the legisla- 
ture of South Carohna would adopt an ordinance of secession. Advised 
by Attorney-General Black, the President interpreted narrowly his pow- 
ers under the Act of 1795 and chose to stand simply on the defensive, 
leaving Congress to pursue the traditional, but now ineffectual, policy of 
compromise. On December 20, the convention of South Carolina repealed 
the ordinance by which it had ratified the Federal Constitution, and four 
days later declared to the world the causes which had brought about this 
momentous step. True to its theory of the Union, the convention dis- 
patched commissioners to Washington to wind up the affairs of the part- 
nership, styled the United States of America, from which the State had 
withdrawn. 

143. Opinion of Attorney-General Black upon the Powers 
of the President} 

... I come now to the point in your letter which is probably 
of the greatest practical importance. By the act of 1807 you 
m_ay employ such parts of the land and naval forces as you shall 
judge necessary for the purpose of causing the laws to be duly 
executed, in all cases where it is lawful to use the militia for the 
same purpose. By the act of 1795 the militia may be called 
forth "whenever the laws of the United States shall be opposed 
or the execution thereof obstructed in any State by combina- 
tions too powerful to be suppressed by the ordinary course of 
judicial proceedings, or by the power vested in the marshals." 
This imposes upon the President the sole responsibility of 
deciding whether the exigency has arisen which requires the 
use of military force; and in proportion to the magnitude of 
that responsibility will be his care not to overstep the limits of 
his legal and just authority. 

The laws referred to in the act of 1795 are manifestly those 

^ November 20, i860. McPherson, PoKtical History of the United States 
of America during the Great Rebellion, 51-52. 



SECESSION AND COERCION 455 

which are administered by the judges and executed by the 
ministerial officers of the courts for the punishment of crime 
against the United States, for the protection of rights claimed 
under the Federal Constitution and laws, and for the enforce- 
ment of such obligations as come within the cognizance of the 
Federal Judiciary. To compel obedience to these laws, the 
Courts have authority to punish all who obstruct their regular 
administration, and the marshals and their deputies have the 
same pov/ersas sheriffs and their deputies in the several States 
in executing the laws of the States, These are the ordinary 
means provided for the execution of the laws, and the whole 
spirit of our system is opposed to the employment of any other 
except in cases of extreme necessity, arising out of great and 
unusual combinations against them. Their agency must con- 
tinue to be used until their incapacity to cope with the power 
opposed to them shall be plainly demonstrated. It is only 
upon clear evidence to that effect that a military force can be 
called into the field. Even then its operations must be purely 
defensive. It can suppress only such combinations as are found 
directly opposing the laws and obstructing the execution 
thereof. It can do no more than what might and ought to be 
done by a civil posse, if a civil posse could be raised large 
enough to meet the same opposition. On such occasions 
especially the military power must be kept in strict subordina- 
tion to the civil authority, since it is only in aid of the latter 
that the former can act at all. . . . 

144. President Buchanan's Message of December 5, 1860} 

... In order to justify secession as a constitutional remedy, 
it must be on the principle that the Federal Government is a 
mere voluntary association of States, to be dissolved at pleas- 
ure by any one of the contracting parties. If this be so, the 
Confederacy is a rope of sand, to be penetrated and dissolved 
by the first adverse wave of public opinion in any of the States. 
In this manner our thirty-three States may resolve themselves 
into as many petty, jarring, and hostile republics, each one 

/ Richardson, Messages and Papers of the Presidents, v, 630-36 passim. 



456 SLAVERY AND THE CONSTITUTION 

retiring from the Union without responsibility whenever any- 
sudden excitement might impel them to such a course. By 
this process a Union might be entirely broken into fragments 
in a few weeks which cost our forefathers many years of toil, 
privation, and blood to establish. 

Such a principle is wholly inconsistent with the history as 
well as the character of the Federal Government. . . . 

It was intended to be perpetual, and not to be annulled at 
the pleasure of any one of the contracting parties. The old 
Articles of Confederation were entitled "Articles of Confeder- 
ation and Perpetual Union between the States," and by the 
thirteenth article it is expressly declared that "the articles of 
this Confederation shall be inviolably observed by every 
State, and the Union shall be perpetual." The preamble to the 
Constitution of the United States, having express reference to 
the Articles of Confederation, recites that it was established 
"in order to form a more perfect union." And yet it is con- 
tended that this "more perfect union" does not include the 
essential attribute of perpetuity. 

But that the Union was designed to be perpetual appears 
conclusively from the nature and extent of the powers con- 
ferred by the Constitution on the Federal Government. These 
powers embrace the very highest attributes of national sover- 
eignty. . . . 

This Government, therefore, is a great and powerful Govern- 
ment, invested with all the attributes of sovereignty over the 
special subjects to which its authority extends. Its framers 
never intended to implant in its bosom the seeds of its own 
destruction, nor were they at its creation guilty of the absurdity 
of providing for its own dissolution. . . . 

It may be asked, then, Are the people of the States without 
redress against the tyranny and oppression of the Federal 
Government? By no means. The right of resistance on the 
part of the governed against the oppression of their govern- 
ments can not be denied. It exists independently t>f all consti- 
tutions, and has been exercised at all periods of the world's 
history. Under it old governments have been destroyed and 



SECESSION AND COERCION 457 

new ones have taken their place. It is embodied in strong 
and express language in our own Declaration of Independence. 
But the distinction must ever be observed that this is revolu- 
tion against an established government, and not a voluntary 
secession from it by virtue of an inherent constitutional right. 
In short, let us look the danger fairly in the face. Secession is 
neither more nor less than revolution. It may or it may not be 
a justifiable revolution, but still it is revolution. 

What, in the meantime, is the responsibility and true posi- 
tion of the Executive? He is bound by solemn oath, before 
God and the country, "to take care that the laws be faithfully 
executed," and from this obligation he can not be absolved by 
any human power. But what if the performance of this duty, 
in whole or in part, has been rendered impracticable by events 
over which he could have exercised no control? Such at the 
present moment is the case throughout the State of South 
Carolina so far as the laws of the United States to secure the 
administration of justice by means of the Federal judiciary 
are concerned. All the Federal officers within its limits through 
whose agency alone these laws can be carried into execution 
have already resigned. We no longer have a district judge, a 
district attorney, or a marshal in South Carolina. In fact, the 
whole machinery of the Federal Government necessary for the 
distribution of remedial justice among the people has been 
demolished, and it would be difficult, if not impossible, to 
replace it. 

The only acts of Congress on the statute book bearing upon 
this subject are those of February 28, 1795, and March 3, 1807. 
These authorize the President, after he shall have ascertained 
that the marshal, with his posse comitatus, is unable to execute 
civil or criminal process in any particular case, to call forth the 
militia and employ the Army and Navy to aid him in perform- 
ing this service, having first by proclamation commanded the 
insurgents "to disperse and retire peaceably to their respective 
abodes within a limited time." This duty can not by possi- 
bility be performed in a State where no judicial authority 
exists jfo issue process, and where there is no marshal to execute 



458 SLAVERY AND THE CONSTITUTION 

it, and where, even if there were such an officer, the entire 
population would constitute one solid combination to resist 
him. 

The bare enumeration of these provisions proves how inade- 
quate they are without further legislation to overcome a united 
opposition in a single State, not to speak of other States who 
may place themselves in a similar attitude. Congress alone 
has power to decide whether the present laws can or can not 
be amended so as to carry out more effectually the objects of 
the Constitution. 

The same insuperable obstacles do not lie in the way of exe- 
cuting the laws for the collection of the customs. The revenue 
still continues to be collected as heretofore at the custom- 
house in Charleston, and should the collector unfortimately 
resign a successor may be appointed to perform this duty. 

Then, in regard to the property of the United States in South 
Carolina. This has been purchased for a fair equivalent, "by 
the consent of the legislature of the State," "for the erection of 
forts, magazines, arsenals," etc., and over these the authority 
"to exercise exclusive legislation" has been expressly granted 
by the Constitution to Congress. It is not believed that any 
attempt will be made to expel the United States from this 
property by force ; but if in this I should prove to be mistaken, 
the officer in command of the forts has received orders to act 
strictly on the defensive. In such a contingency the responsi- 
bility for consequences would rightfully rest upon the heads 
of the assailants. 

Apart from the execution of the laws, so far as this may be 
practicable, the Executive has no authority to decide what 
shall be the relations between the Federal Government and 
South Carolina. ... It is therefore my duty to submit to 
Congress the whole question in all its bearings. . . . 

The question fairly stated is, Has the Constitution dele- 
gated to Congress the power to coerce a State into submission 
which is attempting to withdraw or has actually withdrawn 
from the Confederacy? If answered in the affirmative, it must 
be on the principle that the power has been conferre(^ upon 



r^ 



SECESSION AND COERCION 459 

Congress to declare and to make war against a State. After 
much serious reflection I have arrived at the conclusion that 
no such power has been delegated to Congress or to any other 
department of the Federal Government. . . . 

Without descending to particulars, it may be safely asserted 
that the power to make war against a State is at variance with 
the whole spirit and intent of the Constitution. . . . 

The fact is that our Union rests upon public opinion, and 
can never be cemented by the blood of its citizens shed in 
civil war. If it can not live in the affections of the people, it 
must one day perish. Congress possesses many means of pre- 
serving it by conciliation, but the sword was not placed in their 
hand to preserve it by force. . . . 

145. South Carolina Declaration of Causes} 

... In 1787, Deputies were appointed by the States to 
revise the articles of Confederation; and on 17th September, 
1787, these Deputies recommended, for the adoption of the 
States, the Articles of Union, known as the Constitution of the 
United States. 

The parties to whom this constitution was submitted were 
the several sovereign States; they were to agree or disagree, 
and when nine of them agreed, the compact was to take effect 
among those concurring; and the General Government, as 
the common agent, was then to be invested with their author- 
ity. . . . 

On the 23d May, 1788, South Carolina, by a Convention of 
her people, passed an ordinance assenting to this Constitution, 
and afterwards altered her own Constitution to conform her- 
self to the obligations she had undertaken. 

Thus was established, by compact between the States, a 
Government with defined objects and powers, limited to the 
express words of the grant. This Kmitation left the whole 
remaining mass of power subject to the clause reserving it to 
the States or the people, and rendered unnecessary any specifi- 
cation of reserved rights. We hold that the Government thus 
^ Moore, Rebellion Record, i, 3-4, passim. December 24, i860. 



46o SLAVERY AND THE CONSTITUTION 

established is subject to the two great principles ^ asserted in 
the Declaration of Independence; and we hold further, that 
the mode of its formation subjects it to a third fundamental 
principle, namely, the law of compact. We maintain that in 
every compact between two or more parties the obligation is 
m.utual ; that the failure of one of the contracting parties to 
perform a material part of the agreement, entirely releases the 
obligation of the other; and that, where no arbiter is pro- 
vided, each party is remitted to his own judgment to determine 
the fact of failure, with all its consequences. 

In the present case, that fact is established with certainty. 
We assert that fourteen of the States have deliberately refused 
for years past to fulfil their constitutional obligations, and we 
refer to their own statutes for the proof. 

The Constitution of the United States, in its fourth Article, 
provides as follows: . . . [See Section 2; Clause 3.] , 

This stipulation was so material to the compact that without 
it that compact would not have been made. The greater 
number of the contracting parties held slaves, and they had 
previously evinced their estimate of the value of such a stipu- 
lation by making it a condition in the Ordinance for the govern- 
ment of the territory ceded by Virginia, which obligations, and 
the laws of the General Government, have ceased to effect the 
objects of. the Constitution. The States of Maine, New Hamp- 
shire, Vermont, Massachusetts, Connecticut, Rhode Island, 
New York, Pennsylvania, Illinois, Indiana, Michigan, Wis- 
consin, and Iowa, have enacted laws which either nullify the 
acts of Congress, or render useless any attempt to execute them. 
In many of these, States the fugitive is discharged from the 
service of labor claimed, and in none of them has the State 
Government complied with the stipulation made in the Con- 
stitution. The State of New Jersey, at an early day, passed a 
law in conformity with her constitutional obligation; but the 
current of Anti- Slavery feeling has led her more recently to 

^ "The right of a State to govern itself; and the right of a people to 
abolish a Government when it becomes destructive of the ends for which 
it was instituted." 



SECESSION AND COERCION 461 

enact laws which render inoperative the remedies provided by 
her own laws and by the laws of Congress. In the State of 
New York eveji the right of transit for a slave has been denied 
by her tribunals ; and the States of Ohio and Iowa have refused 
to surrender to justice fugitives charged with murder, and with 
inciting servile insurrection in the State of Virginia. Thus the 
constitutional compact has been deliberately broken and dis- 
regarded by the non-slaveholding States; and the consequence 
follows that South Carolina is released from her obligation. . . . 

We affirm that these ends for which this Government was 
instituted have been defeated, and the Government itself has 
been destructive of them by the action of the non-slaveholding 
States. Those States have assumed the right of deciding upon 
the propriety of our domestic institutions ; and have denied the 
rights of property estabhshed in fifteen of the States and 
recognized by the Constitution ; they have denounced as sinful 
the institution of Slavery; they have permitted the open estab- 
lishment among them of societies, whose avowed object is to 
disturb the peace of and eloin the property of the citizens of 
other States. They have encouraged and assisted thousands 
of our slaves to leave their homes; and those who remain, have 
been incited by emissaries, books, and pictures, to servile 
insurrection. 

For twenty-five years this agitation has been steadily in- 
creasing, until it has now secured to its aid the power of the 
common Governm.ent. Observing the forms of the Constitu- 
tion, a sectional party has found within that article establishing 
the Executive Department, the means of subverting the Con- 
stitution itself. A geographical line has been drawn across the 
Union, and all the States north of that line have united in the 
election of a man to the high office of President of the United 
States whose opinions and purposes are hostile to Slavery. He 
is to be intrusted with the administration of the common 
Government, because he has declared that that " Government 
cannot endure permanently half slave, half free," and that 
the public mind must rest in the belief that Slavery is in the 
course of ultimate extinction. 



462 SLAVERY AND THE CONSTITUTION 

This sectional combination for the subversion of the Con- 
stitution has been aided, in some of the States, by elevating to 
citizenship persons who, by the supreme law of the land, are 
incapable of becoming citizens; and their votes have been used 
to inaugurate a new policy, hostile to the South, and destruc- 
tive of its peace and safety. 

On the 4th of March next this party will take possession of 
the Government. It has announced that the South shall be 
excluded from the common territory, that the Judicial tribunal 
shall be made sectional, and that a war m_ust be waged against 
Slavery until it shall cease throughout the United States. 

The guarantees of the Constitution will then no longer exist ; 
the equal rights of the States will be lost. The Slaveholding 
States will no longer have the power of self-government, or self- 
protection, and the Federal Government will have become their 
enemy. ... 

146. Dissolution of the Partnership} 

The sites of forts, arsenals, navy-yards, and other public 
property of the Federal Government were ceded by the States, 
within whose limits they were, subject to the condition, either 
expressed or implied, that they should be used solely and ex- 
clusively for the purposes for which they were granted. The 
ultimate ownership of the soil, or eminent domain, remains 
with the people of the State in which it lies, by virtue of their 
sovereignty. . . . , 

A State withdrawing from the Union would necessarily as- 
sume the control theretofore exercised by the General Govern- 
ment over all public defenses and other public property within 
her limits. It would, however, be but fair and proper that ade- 
quate compensation should be made to the other members of 
the partnership, or their common agent, for the value of the 
works and for any other advantage obtained by the one party, 
or loss incurred by the other. Such equitable settlement, the 
seceding States of the South, without exception, as I believe, 
were desirous to make, and prompt to propose to the Federal 
authorities. . . . 

^ Davis, Rise and Fall of the Confederate Government, i, 209-14 passim. 



SECESSION AND COERCION 463 

Immediately after the secession of the State, the Convention 
of South CaroHna deputed three distinguished citizens of that 
State — Messrs. Robert W. Barnwell, James H. Adams, and 
James L. Orr — to proceed to Washington, "to treat with the 
Government of the United States for the delivery of the forts, 
magazines, lighthouses, and other real estate, with their appur- 
tenances, within the limits of South Carolina, and also for an 
apportionment of the public debt, and for a division of all other 
property held by the Government of the United States, as 
agent of the confederated States, of which South Carolina was 
recently a member; and generally to negotiate as to all other 
measures and arrangements proper to be made and adopted in 
the existing relation of the parties, and for the continuance of 
peace and amity between this Commonwealth and the Govern- 
ment at Washington." 

The Commissioners, in the discharge of the duty intrusted to 
them, arrived in Washington on the 26th of December. Before 
they could communicate with the President, however — in- 
deed, on the morning after their arrival — they were startled, 
and the whole country electrified, by the news that, during the 
previous night. Major Anderson had "secretly dismantled Fort 
Moultrie," spiked his guns, burned his gun-carriages, and re- 
m.oved his command to Fort Sumter, which occupied a more 
commanding position in the harbor. This movement changed 
the whole aspect of affairs. It was considered by the Govern- 
ment and people of South Carolina as a violation of the implied 
pledge of a maintenance of the status quo; the remaining forts 
and other public property were at once taken possession of by 
the State; and the condition of public feeling became greatly 
exacerbated. An interview between the President and the 
Commissioners was followed by a sharp correspondence, which 
was terminated on the ist of January, 1861, by the return to 
the Commissioners of their final comm_unication, with an en- 
dorsement stating that it was of such a character that the 
President declined to receive it. The negotiations were thus 
abruptly broken off. 



PART EIGHT. THE CONSTITUTION IN 
THE CIVIL WAR 

CHAPTER L 

THE NATURE OF THE WAR 

If the purposes of the new President were different from those of the 
outgoing executive, they were not disclosed in the inaugural address. 
There was, however, one significant omission. Nothing was said about 
coercion. It should be noted that Congress was not in session when hos- 
tilities broke out. The policy of the new administration, therefore, was 
developed under conditions which necessitated a concentration of all the 
powers of government in the hands of the Chief Executive. When Con- 
gress met in special session on July 4, it promptly suppUed the necessary 
legal authorization for the President's acts. On July 13, Congress recog- 
nized a state of war as existing; and on July 22, disclaiming any purpose 
of conquest or subjugation, it declared that its sole object in waging war 
was to maintain the Constitution and to preserve the Union. 

147. President Lincoln's Inaugural Address} 

I hold that in contemplation of universal lav^^ and of the Con- 
stitution the Union of these States is perpetual. Perpetuity is 
implied, if not expressed, in the fundamental law of all national 
governments. It is safe to assert that no government proper 
ever had a provision in its organic law for its own termination. 
Continue to execute all the express provisions of our National 
Constitution, and the Union will endure forever, it being im- 
possible to destroy it except by some action not provided for in 
the instrument itself. 

Again : If the United States be not a government proper, but 
an association of States in the nature of contract merely, can it, 
as a contract, be peaceably unmade by less than all the parties 
who made it? One party to a contract may violate it — break 
it, so to speak — but does it not require all to lawfully rescind 
it? 

^ March 4, 1 861. RichsLrdson, Messages and Papers of the Presidents, vi, 
7-8. 



THE NATURE OF THE WAR 465 

Descending from these general principles, we find the pro- 
position that in legal contemplation the Union is perpetual 
confirmed by the history of the Union itself. The Union is 
much older than the Constitution. It was formed, in fact, by 
the Articles of Association in 1774. It was matured and con- 
tinued by the Declaration of Independence in 1776. It was 
further matured, and the faith of all the then thirteen States 
expressly plighted and engaged that it should be perpetual, by 
the Articles of Confederation in 1778. And finally, in 1787, one 
of the declared objects for ordaining and establishing the Con- 
stitution was ^' to form a more perfect Unions 

But if destruction of the Union by one or by a part only of 
the States be lawfully possible, the Union is less perfect than 
before the Constitution, having lost the vital element of per- 
petuity. 

It follows from these views that no State upon its own mere 
motion can lawfully get out of the Union, that resolves and 
ordinances to that effect are legally void, and that acts of vio- 
lence within any State or States against the authority of the 
United States are insurrectionary or revolutionary, according 
to circumstances. 

I therefore consider that in view of the Constitution and the 
laws the Union is unbroken, and to the extent of my ability I 
shall take care, as the Constitution itself expressly enjoins upon 
me, that the laws of the Union be faithfully executed in all the 
States. Doing thi^ I deem to be only a simple duty on my part, 
and I shall perform it so far as practicable unless my rightful 
masters, the American people, shall withhold the requisite 
means or in some authoritative manner direct the contrary. I 
trust this will not be regarded as a menace, but only as the 
declared purpose of the Union that it will constitutionally 
defend and maintain itself. 

In doing this there needs to be no bloodshed or violence, and 
there shall be none unless it be forced upon the national au- 
thority. The power confided to me will be used to hold, occupy, 
and possess the property and places belonging to the Govern- 
ment and to collect the duties and imposts; but beyond what 



466 CONSTITUTION IN THE CIVIL WAR 

may be necessary for these objects, there will be no invasion, 
no using of force against or among the people anywhere. Where 
hostihty to the United States in any interior locality shall be so 
great and universal as to prevent competent resident citizens 
from holding the Federal offices, there will be no attempt to 
force obnoxious strangers among the people for that object. 
While the strict legal right may exist in the Government to 
enforce the exercise of these offices, the attempt to do'so would 
be so irritating and so nearly impracticable withal that I deem 
it better to forego for the time the uses of such offices. 

The mails, unless repelled, will continue to be furnished in all 
parts of the Union. So far as possible the people everywhere 
shall have that sense of perfect security which is most favorable 
to calm thought and reflection. The course here indicated will 
be followed unless current events and experience shall show a 
modification or change to be proper, and in every case and exi- 
gency my best discretion will be exercised, according to circum- 
stances actually existing and with a view and a hope of a peace- 
ful solution of the national troubles and the restoration of 
fraternal sympathies and affections. . . . 

148. The Call to Arms} 

Whereas the laws of the United States have been for some 
time past and now are opposed and the execution thereof ob- 
structed in the States of South Carolina, Georgia, Alabama, 
Florida, Mississippi, Louisiana, and Texas by combinations too 
powerful to be suppressed by the ordinary course of judicial 
proceedings or by the powers vested in the marshals by law : 

Now, therefore, I, Abraham Lincoln, President of the 
United States, in virtue of the power in me vested by the Con- 
stitution and the laws, have thought fit to call forth, and hereby 
do call forth, the militia of the several States of the Union to 
the aggregate number of 75,000, in order to suppress said com- 
binations and to cause the laws to be duly executed. . . . 

^ April 15, 1861. Richardson, Messages and Papers of the Presidents, 
VI, 13. 



THE NATURE OF THE WAR 467 

149. Proclamation of Blockade} 

Whereas an insurrection against the Government of the 
United States has broken out in the States of South CaroKna, 
Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, 
and the laws of the United States for the collection of the reve- 
nue can not be effectually executed therein conformably to that 
provision of the Constitution which requires duties to be uni- 
form throughout the United States; and 

Whereas a combination of persons engaged in such insurrec- 
tion have threatened to grant pretended letters of marque to 
authorize the bearers thereof to commit assaults on the lives, 
vessels, and property of good citizens of the country lawfully 
engaged in commerce on the high seas and in waters of the 
United States; and 

Whereas an Executive proclamation has been already issued 
requiring the persons engaged in these disorderly proceedings 
to desist therefrom, calling out a militia force for the purpose of 
repressing the same, and convening Congress in extraordinary 
session to deliberate and determine thereon: 

Now, therefore, I, Abraham Lincoln, President of the United 
States, with a view to the same purposes before mentioned and 
to the protection of the public peace and the lives and property 
of quiet and orderly citizens pursuing their lawful occupations, 
until Congress shall have assembled and deliberated on the said 
unlawful proceedings or until the same shall have ceased, have 
further deemed it advisable to set on foot a blockade of the 
ports within the States aforesaid, in pursuance of the laws of 
the United States and of the law of nations in such case 
provided. . . . 

And I hereby proclaim and declare that if any person, under 
the pretended authority of the said States or under any other 
pretense, shall molest a vessel of the United States or the per- 
sons or cargo on board of her, such person will be held amenable 
to the laws of the United States for the prevention and punish- 
ment of piracy. . . . 

^ April 19, 1861. Richardson, Messages and Papers of the Presidents, 
VI, 14. 



468 CONSTITUTION IN THE CIVIL WAR 

150. President Lincoln's Message of July 4, i86i} 

Recurring to the action of the Government, it may be stated 
that at first a call was made for 75,000 miHtia, and rapidly 
following this a proclamation was issued for closing the ports 
of the insurrectionary districts by proceedings in the nature 
of blockade. So far all was believed to be strictly legal. At this 
point the insurrectionists announced their purpose to enter 
upon the practice of privateering. 

Other calls were made for volunteers to serve three years 
unless sooner discharged, and also for large additions to the 
Regular Army and Navy. These measures, whether strictly 
legal or not, were ventured upon under what appeared to be a 
popular demand and a public necessity, trusting then, as now, 
that Congress would readily ratify them. It is beheved that 
nothing has been done beyond the constitutional competency 
of Congress. 

Soon after the first call for militia it was considered a duty to 
authorize the Commanding General in proper cases, according 
to his discretion, to suspend the privilege of the writ of habeas 
corpus, or, in other words, to arrest and detain without resort 
to the ordinary processes and forms of law such individuals 
as he might deem dangerous to the public safety. This author- 
ity has purposely been exercised but very sparingly. Never- 
theless, the legality and propriety of what has been done under 
it are questioned, and the attention of the country has been 
called to the proposition that one who is sworn to "take care 
that the laws be faithfully executed " should not himself violate 
them. Of course some consideration was given to the questions 
of power and propriety before this matter was acted upon. The 
whole of the laws which were required to be faithfully executed 
were being resisted and faihng of execution in nearly one-third 
of the States. Must they be allowed to finally fail of execution, 
even had it been perfectly clear that by the use of the means 
necessary to their execution some single law, made in such 
extreme tenderness of the citizen's liberty that practically it 
^ Richardson, Messages and Papers oj the Presidents, vi, 24-28 passim. 



THE NATURE OF THE WAR 469 

relieves more of the giiilty than of the innocent, should to a 
very limited extent be violated? To state the question more 
directly, Are all the laws hut one to go unexecuted, and the 
Government itself go to pieces lest that one be violated? Even 
in such a case, would not the official oath be broken if the Gov- 
ernment should be overthrown when it was believed that dis- 
regarding the single law would tend to preserve it? But it was 
not believed that this question was presented. It was not 
believed that any law was violated. The provision of the Con- 
stitution that "the privilege of the writ of habeas corpus shall 
not be suspended unless when, in cases of rebellion or invasion, 
the public safety may require it" is equivalent to a provision 
— is a provision — that such privilege may be suspended when, 
in cases of rebellion or invasion, the public safety does require 
it. It was decided that we have a case of rebellion and that the 
public safety does require the qualified suspension of the privi- 
lege of the writ which was authorized to be made. Now it is 
insisted that Congress, and not the Executive, is vested with 
this power; but the Constitution itself is silent as to which or 
who is to exercise the power; and as the provision was plainly 
m.ade for a dangerous emergency, it can not be believed the 
framers of the instrument intended that in every case the 
danger should run its course until Congress could be called 
together, the very assembling of which might be prevented, as 
was intended in this case, by the rebellion. . . . 

Our States have neither more nor less power than that 
reserved to them, in the Union by the Constitution, no one of 
them ever having been a State out of the Union. The original 
ones passed into the Union even before they cast off their 
British colonial dependence, and the new ones each came into 
the Union directly from a condition of dependence, excepting 
Texas; and even Texas in its temporary independence, was 
never designated a State. The new ones only took the designa- 
tion of States on coming into the Union, while that name was 
first adopted for the old ones in and by the Declaration of 
Independence. Therein the "United Colonies" were declared 
to be "free and independent States; " but even then the object 



470 CONSTITUTION IN THE CIVIL WAR 

plainly was not to declare their independence of one another or 
of the Union, but directly the contrary, as their mutual pledge 
and their mutual action before, at the time, and afterwards 
abundantly show. The express plighting of faith by each and 
all of the original thirteen in the Articles of Confederation, two 
years later, that the Union shall be perpetual is most conclusive. 
Having never been States, either in substance or in name, 
outside of the Union, whence this magical omnipotence of 
"State rights," asserting a claim of power to lawfully destroy 
the Union itself? Much is said about the "sovereignty" of the 
States, but the word even is not in the National Constitution, 
nor, as is believed, in any of the State constitutions. What is a 
"sovereignty" in the political sense of the term? Would it be 
far wrong to define it " a political community without a political 
superior"? Tested by this, no one of our States, except Texas, 
ever was a sovereignty ; and even Texas gave up the character 
on coming into the Union, by which act she acknowledged the 
Constitution of the United States and the laws and treaties of 
the United States made in pursuance of the Constitution to 
be for her the supreme law of the land. The States have their 
status in the Union, and they have no other legal status. If 
they break from this, they can only do so against law and by 
revolution. The Union, and not themselves separately, pro- 
cured their independence and their liberty. By conquest or 
purchase the Union gave each of them whatever of independ- 
ence and liberty it has. The Union is older than any of the 
States, and, in fact, it created them as States. Originally 
some dependent colonies made the Union, and in turn the 
Union threw off their old dependence for them and made them 
States, such as they are. Not one of them ever had a State 
constitution independent of the Union. Of course it is not for- 
gotten that all the new States framed their constitutions before 
they entered the Union, nevertheless dependent upon and pre- 
paratory to coming into the Union. 

Unquestionably the States had the powers and rights re- 
served to them in and by the National Constitution; but among 
these surely are not included all conceivable powers, however 



THE NATURE OF THE WAR 471 

mischievous or destructive, but at most such only as were 
known in the world at the time as goverimiental powers ; and 
certainly a power to destroy the Government itself had never 
been known as a governmental — as a merely administrative 
power. . . . 

151. Proclamation of War} 

Whereas on the 15th day of April, 1861, the President of the 
United States, in view of an insurrection against the laws, Con- 
stitution, and Government of the United States . . . did call 
forth the militia to suppress said insurrection and to cause the 
laws of the Union to be duly executed, and the insurgents have 
failed to disperse by the time directed by the President; 
and . . . 

Whereas the insurgents in all the said States claim to act 
under the authority thereof, and such claim is not disclaimed 
or repudiated by the persons exercising the functions of govern- 
ment in such State or States or in the part or parts thereof in 
which such combinations exist, nor has such insurrection been 
suppressed by said States: 

Now, therefore, I, Abraham Lincoln, President of the United 
States, in pursuance of an act of Congress approved July 13, 
1 86 1, do hereby declare that the inhabitants of the said States 
of Georgia, South Carolina, Virginia, North Carolina, Tennes- 
see, Alabama, Louisiana, Texas, Arkansas, Mississippi, and 
Florida (except the inhabitants of that part of the State of 
Virginia lying west of the Alleghany Mountains and of such 
other parts of that State and the other States hereinbefore 
named as may maintain a loyal adhesion to the Union and the 
Constitution or may be from time to time occupied and con- 
trolled by forces of the United States engaged in the dispersion 
of said insurgents) are in a state of insurrection against the 
United States, and that all commercial intercourse between the 
same and the inhabitants thereof, with the exceptions afore- 
said, and the citizens of other States and other parts of the 

^ August 16, 1 86 1. Richardson, Messages and Papers of the Presidents, 
VI, 37-38. 



472 CONSTITUTION IN THE CIVIL WAR 

United States is unlawful, and will remain unlawful until such 
insurrection shall cease or has been suppressed; . . . 

152. The Prize Cases} 

Let us inquire whether, at the time this blockade was insti- 
tuted, a state of war existed which would justify a resort to 
these means of subduing the hostile force. . . . 

Insurrection against a government may or may not culmin- 
ate in an organized rebellion, but a civil war always begins by 
insurrection against the lawful authority of the Governm.ent. 
A civil war is never solemnly declared; it becomes such by its 
accidents, — the number, power, and organization of the per- 
sons who originate and carry it on. When the party in rebellion 
occupy and hold in a hostile manner a certain portion of ter- 
ritory; have declared their independence; have cast off their 
allegiance ; have organized armies ; have commenced hostilities 
against their former sovereign, the world acknowledges them 
as belligerents, and the contest a war. They claim to be in 
arms to estabhsh their liberty and independence, in order to 
become a sovereign State, while the sovereign party treats them 
as insurgents and rebels who owe allegiance, and who should 
be punished with death for their treason. 

The laws of war, as established among nations, have their 
foundation in reason, and all tend to mitigate the cruelties and 
misery produced by the scourge of war. Hence the parties to a 
civil war usually concede to each other belligerent rights. They 
exchange prisoners, and adopt the other courtesies and rules 
common to public or national wars. . . . 

This greatest of civil wars was not gradually developed by 
popular commotion, tumultuous assemblies, or local unorgan- 
ized insurrections. However long may have been its previous 
conception, it nevertheless sprung forth suddenly from the 
parent brain, a Minerva in the full panoply of war. The Presi- 
dent was bound to meet it in the shape it presented itself, 
without waiting for Congress to baptize it with a name; and no 
name given to it by him or them could change the fact. 
1 Supreme Court of the United States, 1863. 2 Black, 635. 



THE NATURE OF THE WAR 473 

It is not the less a civil war, with belligerent parties in hostile 
array, because it may be called an "insurrection" by one side, 
and the insurgents be considered as rebels or traitors. It is not 
necessary that the independence of the revolted province or 
State be acknowledged in order to constitute it a party belliger- 
ent in a war according to the law of nations. Foreign nations 
acknowledge it as war by a declaration of neutrality. The con- 
dition of neutrality cannot exist unless there be two belligerent 
parties. . . . 

The law of nations is also called the law of nature; it is 
founded on the common consent as well as the common sense 
of the world. It contains no such anom,alous doctrine as that 
which this Court are now for the first time desired to pronounce, 
to wit: That insurgents who have risen in rebellion against 
their sovereign, expelled her courts, established a revolutionary 
government, organized armies, and commenced hostilities, are 
not enemies because they are traitors; and a war levied on the 
government by traitors, in order to dismember and destroy it, 
is not a war because it is an "insurrection." 

Whether the President, in fulfilling his duties as Commander- 
in-chief in suppressing an insurrection, has met with such 
armed hostile resistance, and a civil war of such alarming pro- 
portions, as will compel him to accord to them the character of 
belligerents, is a question to be decided by him, and this Court 
must be governed by the decisions and acts of the political 
department of the Government to which this power was in- 
trusted. "He must determine what degree of force the crisis 
dem.ands." The proclamation of blockade is itself official and 
conclusive evidence to the Court that a state of war existed 
which demanded and authorized a recourse to such a measure, 
under the circumstances peculiar to the case. . . . 

On this first question therefore we are of the opinion that the 
President had a right, jure belli, to institute a blockade of ports 
in possession of the States in rebellion, which neutrals are 
bound to regard. 



CHAPTER LI 

PRESIDENTIAL DICTATORSHIP 

None of the powers assumed by the President immediately after the 
fall of Fort Sumter was so vigorously denounced as his order to General 
Scott to suspend the writ of habeas corpus at his discretion along the mili- 
tary line between Washington and Philadelphia. In pursuance of this 
order, one John Merryman, a citizen of Maryland, was arrested upon 
suspicion of treasonable conduct. His application to the Supreme Court 
for a writ of habeas corpus gave occasion to Chief Justice Taney to record 
a vigorous dissent from the doctrine that in a crisis the President might 
suspend the privilege of the writ. The President not only disregarded the 
protest, but extended the order to suspend the writ along the line from 
Washington to New York. In this course he was sustained by the Attor- 
ney-General, whose opinion may be regarded as a reply to the Chief 
Justice. 

153. Ex parte John Merryman} 

. . . The case, then, is simply this : A military officer residing 
in Pennsylvania issues an order to arrest a citizen of Maryland, 
upon vague and indefinite charges, without any proof, so far as 
it appears. Under this order his house is entered in the night; 
he is seized as a prisoner, and conveyed to FortMcHenry, and 
there kept in close confinement. And when a habeas corpus is 
served on the commanding officer, requiring him to produce the 
prisoner before a Justice of the Supreme Court, in order that he 
may examine into the legality of the imprisonment, the answer 
of the officer is that he is authorized by the President to sus- 
pend the writ of habeas corpus at his discretion, and, in the ex- 
ercise of that discretion, suspends it in this case, and on that 
ground refeises obedience to the writ. . . . 

The clause in the Constitution which authorizes the suspen- 
sion of the privilege of the writ of habeas corpus is in the ninth 
section of the first article. 

This article is devoted to the Legislative Department of the 
United States, and has not the slightest reference to the Execu- 

^ McPherson, Political History of the United States during the Great 
Rebellion, 155-56. 



PRESIDENTIAL DICTATORSHIP 475 

tive Department. It begins by providing "that all legislative 
powers therein granted shall be vested in a Congress of the 
United States, which shall consist of a Senate and House of 
Representatives." And after prescribing the manner in which 
these two branches of the legislative department shall be 
chosen, it proceeds to enumerate specifically the legislative 
powers which it thereby grants and legislative powers which it 
expressly prohibits, and, at the conclusion of this specification, 
a clause is inserted giving Congress "the power to make all 
laws which may be necessary and proper for carrying into exe- 
cution the foregoing powers, and all other powers vested by this 
Constitution in the Government of the United States or in any 
department or ofiice thereof." 

The power of legislation granted by this latter clause is by 
its words carefully confined to the specific objects before enum- 
erated. But as this limitation was unavoidably somewhat in- 
definite, it was deemed necessary to guard more effectually 
certain great cardinal principles essential to the liberty of the 
citizen and to the rights and equality of the States by denying 
to Congress, in express terms, any power of legislation over 
them. It was apprehended, it seems, that such legislation might 
be attempted under the pretext that it was necessary and 
proper to carry into execution the powers granted ; and it was 
determined that there should be no room to doubt, where rights 
of such vital im_portance were concerned, and accordingly this 
clause is immediately followed by an enumeration of certain 
subjects to which the powers of legislation shall not extend ; and 
the great importance which the framers of the Constitution 
attached to the privilege of the writ of habeas corpus, to protect 
the liberty of the citizen, is proved by the fact that its suspen- 
sion, except in cases of invasion and rebellion, is first in the list 
of prohibited powers; and even in these cases the power is 
denied and its exercise prohibited unless the public safety shall 
require it. It is true that in the cases mentioned Congress is of 
necessity the judge of whether the public safety does or does 
not require it; and its judgment is conclusive. But the intro- 
duction of these words is a standing admonition to the legis- 



476 CONSTITUTION IN THE CIVIL WAR 

lative body of the danger of suspending it and of the extreme 
caution they should exercise before they give the Government 
of the United States such power over the Hberty of a citizen. 

It is the second article of the Constitution that provides for 
the organization of the Executive Department, and enumerates 
the powers conferred on it, and prescribes its duties. And if the 
high power over the liberty of the citizens now claimed was in- 
tended to be conferred on the President, it would undoubtedly 
be found in plain words in this article. But there is not a word 
in it that can furnish the slightest ground to justify the exercise 
of the power. 

The article begins by declaring that the Executive power 
shall be vested in a President of the United States of America, 
to hold his office during the term of four years, and then pro- 
ceeds to describe the mode of election, and to specify in precise 
and plain words the po.vers delegated to him and the duties 
imposed upon him. And the short term for which he is elected, 
and the narrow limits to which his power is confined, show the 
jealousy and apprehensions of future danger which the framers 
of the Constitution felt in relation to that department of the 
Government, and how carefully they withheld from it many of 
the powers belonging to the executive branch of the English 
Government which were considered as dangerous to the liberty 
of the subject, and conferred (and that in clear and specific 
terms) those powers only which were deemed essential to secure 
the successful operation of the Government. 

He is elected, as I have already said, for the brief term of 
four years, and is made personally responsible, by impeach- 
ment, for malfeasance in office. He is, from necessity, and the 
nature of his duties, the Commander-in-Chief of the army and 
navy, and of the militia, when called into actual service. But 
no appropriation for the support of the army can be made by 
Congress for a longer term than two years, so that it is in the 
power of the succeeding House of Representatives to withhold 
the appropriation for its support, and thus disband it, if, in 
their judgment, the President used or designed to use it for 
improper purposes. And although the militia, when in actual 



PRESIDENTIAL DICTATORSHIP 477 

service, are under his command, yet the appointment of the 
officers is reserved to the States, as a security against the use of 
the miHtary power for purposes dangerous to the liberties of 
the people or the rights of the States. 

So, too, his powers in relation to the civil duties and au- 
thority necessarily conferred on him are carefully restricted, as 
well as those belonging to his mihtary character. He cannot 
appoint the ordinary officers of Government, nor make a treaty 
with a foreign nation or Indian tribe without the advice and 
consent of the Senate, and cannot appoint even inferior officers 
unless he is authorized by an act of Congress to do so. He is not 
empowered to arrest any one charged with an offense against 
the United States, and whom he may, from the evidence before 
him, believe to be guilty; nor can he authorize any officer, civil 
or mihtary, to exercise this power, for the fifth article of the 
amendments to the Constitution expressly provides that no 
person "shall be deprived of life, liberty, or property without 
due process of law;" that is, judicial process. And even if the 
privilege of the writ of habeas corpus was suspended by act of 
Congress, and a party not subject to the rules and articles of 
war was afterwards arrested and imprisoned by regular judicial 
process, he could not be detained in prison or brought to trial 
before a military tribunal, for the article in the Amendments to 
the Constitution immediately following the one above referred 
to — that is, the sixth article — provides that, "in all criminal 
prosecutions, the accused shall enjoy the right to a speedy and 
public trial by an impartial jury of the State and district 
wherein the crime shall have been committed, which district 
shall have been previously ascertained by law, and to be in- 
formed of the nature and cause of the accusation; to be con- 
fronted with the witnesses against him; to have compulsory 
process for obtaining witnesses in his favor, and to have the 
assistance of counsel for his defence." 

And the only power, therefore, which the President possesses, 
where the "life, liberty, or property " of a private citizen is con- 
cerned, is the power and duty prescribed in the third section of 
the second article, which requires "that he shall take care that 



478 CONSTITUTION IN THE CIVIL WAR 

the laws be faithfully executed." He is not authorized to exe- 
cute them himself, or through agents or officers, civil or mili- 
tary, appointed by himself, but he is to take care that they be 
faithfully carried into execution as they are expounded and 
adjudged by the coordinate branch of the Government to 
which that duty is assigned by the Constitution. It is thus 
made his duty to come in aid of the judicial authority, if it shall 
be resisted by a force too strong to be overcome without the 
assistance of the Executive arm. But in exercising this power, 
he acts in subordination to judicial authority, assisting it to 
execute its process and enforce its judgments. 

With such provisions in the Constitution, expressed in 
language too clear to be misunderstood by any one, I can see no 
ground whatever for supposing that the President, in any 
emergency or in any state of things, can authorize the suspens- 
ion of the privilege of the writ of habeas corpus, or arrest a 
citizen, except in aid of the judicial power. He certainly does 
not faithfully execute the laws if he takes upon himself legisla- 
tive power by suspending the writ of habeas corpus — and the 
judicial power, also, by arresting and imprisoning a person 
without due process of law. Nor can any argument be drawn 
from the nature of sovereignty, or the necessities of government 
for self-defense, in times of tumult and danger. The Govern- 
ment of the United States is one of delegated and limited pow- 
ers. It derives its existence and authority altogether from the 
Constitution, and neither of its branches — executive, legisla- 
tive, or judicial — can exercise any of the powers of govern- 
ment beyond those specified and granted. 

154. Opinion of Attorney-General Bates} 

I am clearly of opinion that, in a time like the present, when 
the very existence of the nation is assailed by a great and dan- 
gerous insurrection, the President has the lawful discretionary 
power to arrest and hold in custody persons known to have 
criminal intercourse with the insurgents, or persons against 

^ July 5, 1 86 1. McPherson, Political History of the United States of 
America during the Great Rebellion, 159-61 passim. 



PRESIDENTIAL DICTATORSHIP 479 

whom there is probable cause for suspicion of such criminal com- 
pKcity. And I think this position can be maintained, in view 
of the principles already laid down, by a very plain argument. 

The Constitution requires the President, before he enters 
upon the execution of his office, to take an oath that he "will 
faithfully execute the office of President of the United States 
and will, to the best of his ability, preserve, protect, and defend 
the Constitution of the United States." . . . 

The last clause of the oath is pecuHar to the President. All 
the other officers of Government are required to swear only 
"to support this Constitution;" while the President must 
swear to "preserve, protect, and defend" it, which implies the 
power to perform what he is required in so solemn a m.anner to 
undertake. And then follows the broad and compendious in- 
junction to "take care that the laws be faithfully executed." 
And this injunction, embracing as it does all the laws — Con- 
stitution, treaties, statutes — is addressed to the President 
alone, and not to any other department or office of the Govern- 
ment. And this constitutes him, in a peculiar manner, and 
above all other officers, the guardian of the Constitution — its 
preserver, protector, and defender. . . . 

It is the President's bounden duty to put down the insurrec- 
tion, as, in the language of the act of 1795, the "combinations 
are too powerful to be suppressed by the ordinary course of 
judicial proceedings, or by the powers vested in the marshals." 
And this duty is im.posed upon the President for the very 
reason that the courts and the marshals are too weak to per- 
form it. The manner in which he shall perform that duty is 
not prescribed by any law, but the means of performing it are 
given in the plain language of the statutes, and they are all 
means of force — the militia, the Army, and the Navy. The 
end, the suppression of the insurrection, is required of him; the 
means and instruments to suppress it are lawfully in his hands ; 
but the manner in which he shall use them is not prescribed, 
and could not be prescribed, without a fore-knowledge of all 
the future changes and contingencies of the insurrection. He 
is therefore necessarily thrown upon his discretion as to the 



48o CONSTITUTION IN THE CIVIL WAR 

manner in which he will use his means to meet the varying 
exigencies as they arise. If the insurgents assail the nation 
with an army he may find it best to meet them with an army, 
and suppress the insurrection on the field of battle. If they seek 
to prolong the rebellion and gather strength by intercourse 
with foreign nations, he may choose to guard the coast and 
close the ports with a navy, as one of the most efficient means 
to suppress the insurrection. And if they employ spies and 
emissaries to gather information, to forward secret supplies, 
and to excite new insurrections in aid of the original rebellion, 
he may find it both prudent and humane to arrest and imprison 
them. And this may be done either for the purpose of bringing 
them to trial and condign punishment for their crimes, or they 
may be held in custody for the milder end of rendering them 
powerless for mischief until the exigency is past. 

In such a state of things the President must, of necessity, 
be the sole judge, both of the exigency which requires him to 
act, and of the manner in which it is most prudent for him to 
employ the powers entrusted to him, to enable him to dis- 
charge his constitutional and legal duty; that is, to suppress the 
insurrection and execute the laws. And this discretionary 
power of the President is fully admitted by the Supreme Court 
in the case of Martin vs. Mott. . . . 

The insurrection itself is purely pohtical. Its object is to 
destroy the political government of this nation, and to estab- 
lish another pohtical government upon its ruins. And the 
President, as the chief civil magistrate of the nation, and the 
most active department of the Government, is eminently and 
exclusively pohtical in all its principal functions. As the 
political chief of the nation, the Constitution charges him with 
its preservation, protection, and defense, and requires him to 
take care that the laws be faithfully executed. ... He has 
no judicial powers. And the Judiciary Department has no 
political powers, and claims none, and therefore (as well as for 
other reasons already assigned) no court or judge can take 
cognizance of the political acts of the President, or undertake 
to revise and reverse his political decisions. 



PRESIDENTIAL DICTATORSHIP 481 

The jurisdiction exercised under the writ of habeas corpus is 
in the nature of an appeal, (4 Cr. 75,) for, as far as concerns the 
right of the prisoner, the whole object of the process is to re- 
examine and reverse or affirm the acts of the person who im- 
prisoned him. And I think it will hardly be seriously affirmed 
that a judge, at chambers, can entertain an appeal, in any 
form, from a decision of the President of the United States, and 
especially in a case purely political. . . . 

If by the phrase the suspension of the privilege of the writ of 
habeas corpus, we m.ust understand a repeal of all power to issue 
the writ, then I freely admit that none but Congress can do it. 
But if we are at liberty to understand the phrase to mean, that 
in case of a great and dangerous rebellion like the present, the 
public safety requires the arrest and confinement of persons 
impHcated in that rebellion, I as freely declare the opinion that 
the President has lawful power to suspend the privilege of 
persons arrested under such circumstances; for he is especially 
charged by the Constitution with the "public safety," and he 
is the sole judge of the emergency which requires his prompt 
action. 

This power in the President is no part of his ordinary duty 
in time of peace; it is temporary and exceptional, and was 
intended only to meet a pressing emergency, when the judiciary 
is found to be too weak to insure the public safety — when (in 
the language of the act of Congress) there are "combinations 
too powerful to be suppressed by the ordinary course of judi- 
cial proceedings, or by the powers vested in the marshals." 
Then and not till then, has he the lawful authority to call to his 
aid the military power of the nation, and with that power per- 
form his great legal and constitutional duty to suppress the 
insurrection. And shall it be said that when he has fought and 
captured the insurgent army, and has seized their secret spies 
and emissaries, he is bound to bring their bodies before any 
judge who may send him a writ of habeas corpus, "to do, sub- 
mit to, and receive whatsoever the said judge shall consider in 
that behalf?" . . . 



CHAPTER LII 

THE WAR POWER AND CIVIL RIGHTS 

The theory upon which the Federal Government waged war led to 
many difficulties in actual practice. By the terms of the proclamation 
declaring a blockade, privateering was to be treated as piracy, but 
President Lincoln shrank from the consequences when crews of captured 
privateers were brought to trial. It was well understood that the Confed- 
erate Governnfient would retaliate. In respect to life and liberty, there- 
fore, the administration simply fell back upon the rules and practices of 
international law. In dealing with the property of secessionists, greater 
difficulty was experienced. During the second session of the Thirty- 
seventh Congress, various bills were considered which contemplated the 
punishment of secessionists by the confiscation of their property. At the 
same time, it was generally hoped that the question of slavery would 
receive a definite settlement. Confiscation and emancipation were two 
problems which created bitter dissensions in the ranks of the governing 
party. The following extracts from the debates in Congress represent the 
ultra-radical and the conservative views. The Confiscation Act adopted 
July 17, 1862, was a compromise measure. Briefly stated, it made rebel- 
lion a felony and fixed severe penalties for treason and rebellion. It 
directed the seizure of all the property of specified classes of persons 
engaged directly and indirectly in rebeUion, and by action in rem in the 
courts of the United States provided for its condemnation and sale as 
enemies' property. When brought within the military or civil jurisdiction 
of the United States, by capture or otherwise, slaves of persons in rebellion 
were declared free. Fugitive slaves were not to be given up unless their 
owners declared under oath that they had not aided the rebellion. The 
President was authorized to employ negroes as soldiers and to make pro- 
vision for the colonization of freedmen in some foreign country. 

155. Senator Collamer on Confiscation oj Rebel Property} 

Mr, President, I have already remarked that in whatever 
we do we must keep fairly within the Kmitations of the Consti- 
tution. It will not do to say that because we need to do this 
thing, because it is necessary in our judgment, we will do it for 
that reason. The Kmitations and prohibitions of power in the 
Constitution were put there on purpose to prevent our doing 
such things when we wanted to do them. . . . 

^ April 24, 1862. Congressional Globe, 37 Cong., 2 Sess., 1809-10, passim. 



WAR POWER AND CIVIL RIGHTS 483 

A considerable part of the projects before the two Houses 
propose to confiscate people's property, real and personal, 
either all of the people in the South, or classes of them. How 
are you to do it without trying and convicting the men, as the 
Constitution says men shall be punished only in that way, and 
shall not be deprived of their property but according to due 
process of law? There has been a recent discovery that there 
is a certain term — a law phrase — which, perhaps, the people 
will not understand, that has a vast deal of hocus pocus in it, 
by which we can get rid of all that sort of business. What is it? 
It is what is called proceedings in rem. A man has been guilty 
of treason. Well, what is your Constitution? Try him on indict- 
ment, by a jury. You cannot punish him in any other way; 
you cannot deprive him of his property for it in any other way. 
"To be sure," say gentlemen, "that is a troublesome thing; 
but there is a certain in rem by which we will let the man en- 
tirely alone, but will seize hold of such property as he has got, 
and we will punish that by way of proceedings in rem; and by 
and by, when we catch him, we will try him and hang him, 
though that is another punishment, and the Constitution says 
we shall not punish him but once." So you have proceedings in 
rem, and then proceedings in personam! That is the discovery! 

Now, Mr. President, what are these proceedings in rem, 
where you do not have any jury? What is the form, what is the 
character of them? They are trials before prize courts or 
admiralty courts. In what cases? It is when a thing is the 
instrument of wrong, so that in legal estimation it is a guilty 
thing. Then you may proceed with that thing. If a man is 
tr3dng to smuggle goods, you know he cannot be guilty of 
smuggling without goods. The goods are the instrument of the 
wrong ; and therefore there is a proceeding by which you may 
take and condemn the thing, for that is what rem means, I 
believe. So, too, if a pirate's vessel, with which he marauds 
upon the seas against the nations, is taken, it is a guilty thing, 
it is the instrument of wrong, and you proceed against it. So 
when men pursue the slave trade with ships, they are the 
instruments of the wrong, and you proceed against them in 



484 CONSTITUTION IN THE CIVIL WAR 

rem. In proceeding in rem you do not give the thing notice 
because it cannot answer ; you do not give it a trial by jury, as 
when you proceed against the man. . . . 

This proceeding in rem is spoken of in a manner which would 
be rather hidicrous if it were not so serious an affair, but it is 
no slight thing to say that when a man has committed a crime 
Hke that of treason, and is within the reach of your process, 
you may proceed to strip him of his property or do anything 
you can do, as you say, and then punish him afterwards. Is it 
a rule that you must do on such occasions whatever you have 
physical means to do, and therefore, if you cannot reach him in 
any other way, if he has gone out of the reach of process, you 
must take his property because you have nothing else to take? 
If a man is guilty of counterfeiting your Treasury notes, and 
you cannot catch him, if he is out of the way, why not, on the 
same principle, have a law to cut his wife's throat if he has no 
property? Sir, the whole idea in my estimation is entirely 
wrong, and an attempt to do that which the provision of the 
Constitution was intended to guard against. It nowhere says 
that, if you cannot punish the man because he gets out of the 
reach of process, therefore you may disregard the provisions of 
the Constitution and take some other way. There is nothing 
of that kind in the Constitution. I take it we have all our 
powers from the Constitution, and that in itself inhibits to us 
by absolute abnegation that we shall exercise any powers but 
what are there granted, and all the rest were reserved from us. 

Mr. President, this word "confiscate" hterally means "put 
into the Treasury," and it can legitimately be applied only to 
that out of which you can get som.ething to put into the 
Treasury. That is truly the meaning of the term. But, sir, 
when we legislate for the people of the Southern seceded States 
we do it because they are our people. We treat all this secession 
as void, and I take it, that that which is void can have no legal 
effect. It can have no effect to confiscate anybody's goods or 
annihilate the States; nor can it have any other legal effect 
whatever. When we legislate for that people as our people in 
common with the rest of our citizens, we must allow to them all 



WAR POWER AND CIVIL RIGHTS 485 

the rights and privileges, immunities and protections that the 
Constitution gives to citizens of the Union, I have therefore 
made the remarks which I have made upon this question on 
the basis that we cannot take courses in relation to them, by 
laws made by us over them as a people bound by those laws, 
on any other grounds than those which apply to all our people. If 
we make laws by our power under the Constitution we must re- 
gard the prohibitions of the Constitution, else we are lawless. . . . 

It is said, however, that we are at war, and that we have 
become elevated to the privileges, and are entitled to exercise 
the rights, of a belligerent ; that this power of confiscation is a 
sort of war power over our own citizens that we have a right 
to exercise in the capacity of a belligerent. , . . Undoubtedly, 
so far as regards the conducting of the war, it should be con- 
ducted according to the laws of nations, and, if you please, 
according to the usages of nations in these times of civilization; 
but when we come to the rights of belligerents, can we apply 
them? When we conquer a country with which we are at war, 
we own the public property there. Now, we have conquered 
Tennessee, if you please. Do we own the capitol at Nashville 
to-day? Do we own any of the universities and colleges and 
public property of the State of Tennessee to-day? If they are 
treated as belligerents, then when you conquer the country, 
the property in the land remains in the individuals who owned 
it before, and the nation acquires no title to it by conquest. 
Here is an attempt to get possession of all that property of 
individuals who have been concerned in this rebellion. And 
how? As a belligerent. According to the laws of nations, a 
belligerent does not get it. I know that the Constitution pro- 
vides that Congress may issue letters of marque and reprisal, 
and make regulations in relation to captures or seizures by sea 
and land. That looks to a state of war, undoubtedly. What is a 
seizure or capture? What is the meaning of the term? Some- 
thing that you take, make prize of, carry away. Can you carry 
away the farms of an enemy? Are they the subject of capture? 
Not at all. 

But, Mr. President, when, after a war with another nation, 



486 CONSTITUTION IN THE CIVIL WAR 

you make peace with it, all matters are ended, depending on the 
form of your articles of peace. It may be the status ante hel- 
ium, it may be uti possidetis, depending on the terms of your 
treaty; but all matters are then ended. Now, when we have 
conquered these people, taken military possession of the coun- 
try, can we not punish the men who have been in rebellion; 
can we not render it legitimate to hang them? Certainly. 
Could you do so with enemies with whom you have made war 
and peace? No; but in such cases, when peace was declared, 
the past would be wiped out. 

Again, to treat with them and treat about them as being 
belHgerents, is to acknowledge them, so far as this war is con- 
cerned, as a coequal power. We have complained that any for- 
eign nation acknowledged and recognized them as in a state of 
belligerency. We thought it was pretty hard usage to us. I do 
not see it in that light exactly; but at any rate, especially after 
what has been said to the other nations of the world by our 
functionary and correspondent of the State Department, it ill 
becomes us to take measures founded on the ground that they 
are coequals and belligerents, and that we may make laws ac- 
cordingly. This legislating for that people as bound by the laws 
that we here make, and at the same time legislating for them 
as enemies and belligerents, not bound by the laws we make, is 
to my mind utterly inconsistent, utterly irreconcilable, and I 
shall not, therefore, make any further remarks, in relation to 
what might by possibihty be done by us as belligerents. . . . 

156. Senator Sumner on the Rights of War} 

The War Powers of Congress are derived from the Constitu- 
tion, but when once set in motion, are without any restraint 
from the Constitution, so that what is done in pursuance of 
them is at the same time under the Constitution and outside 
the Constitution. It is under the Constitution in its beginning 
and origin. It is outside the Constitution in the latitude with 
which it may be conducted. But, whether under the Constitu- 
tion or outside the Constitution, all that is done in pursuance of 

^ June 27, 1862. Congressional Globe, 37 Cong., 2 Sess., 2963-64 passim. 



WAR POWER AND CIVIL RIGHTS 487 

the War Powers is constitutional. It is easy to cry out against 
it ; it is easy, by misapplication of the Constitution, to call it in 
question; but it is only by such a misapplication, or by a sense- 
less cry, that its complete constitutionality can for a moment 
be drawn into doubt. 

The language of the Constitution is plain and ample. It 
confers upon Congress all the specific powers incident to war, 
and then further authorizes it "to make all laws which shall 
be necessary and proper for carrying into execution the fore- 
going powers." . . . 

The bills now under consideration are obviously founded on 
the War Powers. . . . 

. . . The Constitution is entirely inappHcable. Sacred and 
inviolable, the Constitution is made for friends who acknowl- 
edge it, and not for enemies who disavow it ; and it is made for 
a state of peace, and not for the fearful exigencies of war. War, 
as it comes, treads down within its sphere all rights except the 
Rights of War. Born of violence, and looking to violence for 
victory, it discards all Hmitations, except such as are supplied 
by the Rights of War. Once begun, war is a law unto itself; or, 
in other words, it has a law of its own, which is a part of itself. 
And just in proportion as you seek to moderate it by constitu- 
tional limitations, do you take from war something of its effi- 
ciency. In vain do you equip our soldiers with the best of weap- 
ons or send into the field the most powerful batteries, the latest 
invention of consummate science, if you direct them all in full 
career to stand still for an indictment or other due process of 
law, or at least for the reading of the riot act. But, sir, if you 
undertake to limit the Rights of War by the Constitution, 
where are you to stop? If the Constitution can interfere with 
one, it can interfere with all. If the Constitution can wrest 
from Government the weapons of confiscation and liberation, 
there is no other weapon in the whole arsenal of war which it 
may not take also. 

Sir, the Constitution is guilty of no such absurdity. It was 
made by wise men, familiar with public law, who saw clearly 
the difference between peace and war, and who established 



488 CONSTITUTION IN THE CIVIL WAR 

powers accordingly. In circumscribing the Peace Powers with 
constitutional checks, they left untouched the War Powers. 
They declared that, in the administration of the Peace Powers, 
all should be able to invoke the Constitution as a constant safe- 
guard. But, in bestowing upon the Government War Powers 
without limitation, they embodied in the Constitution all the 
Rights of War as completely as if those rights had all been 
expressly set down and enumerated; and among the first of 
these rights is the right to disregard all the rights of peace. , . . 
At the risk of repetition, but for the sake of clearness, let me 
now repeat the propositions on which I confidently rest. 

1 . The Rights of Sovereignty are derived from the Constitu- 
tion, and can be exercised only in conformity with the require- 
ments of the Constitution : so that all penal statutes, punishing 
treason, must carefully comply with these requirements. . . . 

2. The Rights of War are under the Constitution in their 
origin, but outside the Constitution in their execution. In 
other words the Constitution confers the Rights of War, but 
sets no limits to them, so that Statutes to enforce them are not 
to be regarded as mere penal statutes, restricted by the Con- 
stitution. But these rights belong to a state of war, and neces- 
sarily cease with the war. This is the case of the House bills 
now under discussion. 

3. Rebels in arms are public enemies, who can claim no safe- 
guard from the Constitution, and they may be pursued and 
conquered according to the Rights of War. 

4. All rebels are criminals, liable to punishment according to 
penal statutes, and in all proceedings against them as such, 
they are surrounded by the safeguards of the Constitution. 

5. The Rights of War may be enforced by act of Congress, 
which is the highest form of the national will. . . . 

157. Representative Thomas on Confiscation} 

. . . The positions assumed by the friends of these measures 
are, that we may deal with those engaged in this rebellion as 

^ May 24, 1862. Congressional Globe, 37 Cong., 2 Sess., App., 219-20 
passim. 



WAR POWER AND CIVIL RIGHTS 489 

public enemies and as traitors ; that regarding them as enemies, 
we may use against them all the powers granted by the law of 
nations; and viewing them as rebels or traitors, we may use 
against them all the powers granted by the Constitution; and 
that in either view, these bills can be sustained. 

Dealing with them as public enemies, it is said that under the 
existing law of nations we have a clear right to confiscate the 
entire private property on the land as well as the sea, real and 
personal, of those in arms, and of non-combatants who may in 
any way give aid and comfort to the rebellion. ... I deny the 
proposition, Mr. Speaker. . . . Such is not the law of nations. 

To give a plausible aspect to the proposition, the advocates 
of this bill have gone back, to Grotius and to Bynkershoek for 
the rules of war, and even then have omitted to give what 
Grotius calls the temperamenta, or restraints upon the rules. 
You might as well attempt to substitute the code of Moses for 
the beatitudes of the Gospel. Anything can be established by 
such resort to the authorities. By the older writers you can 
prove not only all the property of the vanquished may be 
taken, but that every prisoner may be put to death. . . . 

Commerce, civilization. Christian culture, have tempered 
and softened the rigor of the ancient rules ; and the State which 
should to-day assume to put them in practice would be an out- 
cast from the society of nations. Nay, more, they would com- 
bine, and rightfully combine, to stay its hand. For the modern 
law of war, you must look to the usages of civilized States, and 
to the publicists who have explained and enforced them. Those 
usages constitute themselves the laws of war. 

In relation to the capture and confiscation of private pro- 
perty on the land, I venture to say, with great confidence, and 
after careful examination, that the result of the whole matter 
has never been better stated than by our own great pubKcist, 
Mr. Wheaton: 

*' But by the modern usage of nations, which has now ac- 
quired the force of law, temples of religion, public edifices de- 
voted to civil purposes only, monuments of art, and repositories 
of science, are exempted from the general operations of war. 



490 CONSTITUTION IN THE CIVIL WAR 

Private property on land is also exempt from confiscation, with 
the exception of such as may become booty in special cases, 
when taken from enemies in the field or in besieged towns, 
and of military contributions levied upon the inhabitants of the 
hostile territory. This exemption extends even to the case of an 
absolute and unqualified conquest of the enemy's country." — 
Elements of International Law, p. 421. . . . 

The property to which the bill applies is not, under the law of 
nations, prize, it is not booty, it is not contraband of war. It is 
not enforced military contribution. It is not property used or 
employed in the war or in resistance to the laws, and, therefore, 
clearly to be distinguished from that covered by the statute of 
August 6, 186 1. It is private property outside of the conflict of 
arms, forfeited not because it is the instrument of offence, but 
as a penalty for the crime of the owner. The disguise of the 
proceeding in rem is too thin and transparent. No lawyer, no 
man of common sense will be deceived by it. The proceeding, 
in spirit, in substance, and in effect, is the punishment of trea- 
son by the forfeiture of a man's entire estate, real and personal, 
without trial by jury, and in utter disregard of the provision of 
the Constitution which limits the forfeiture for treason to the 
life of the person attainted. ... 



CHAPTER LIII 

MARTIAL LAW AND THE CONSTITUTION 

Military arrests continued through the war, not only in the border 
States, but in States remote from the theater of war. The procedure of 
the Government was most irregular; but in September, 1862, the Presi- 
dent deiinitely assumed the power to proclaim martial law generally. 
Military districts under the control of provost marshals were established; 
and "all rebels and insurgents, their aiders and abettors, and all persons 
discouraging volunteer enlistments, resisting militia drafts, or guilty of 
any disloyal practice, affording aid and comfort to the rebels," were 
declared "subject to martial law and liable to trial and punishment by 
courts martial or military commission." Over against the radical utter- 
ances of Thaddeus Stevens, for whom no war measures were too strong, 
one must put the sober judgment of Benjamin J. Curtis in his widely read 
pamphlet on The Executive Power. It was not until after the war that 
an authoritative opinion relative to these military tribunals was secured 
from the Supreme Court. 

158. Power of Congress to Create a Dictator} 

. . . When the Constitution is repudiated, and set at de- 
fiance by an armed rebellion, too powerful to be quelled by 
peaceful means, or by any rules provided for the regulation of 
the land and naval forces, the Constitution itself grants to the 
President and Congress a supplemental power, which it was 
impossible to define, because it must go on increasing and vary- 
ing according to the increasing and varying necessities of the 
nation. The Constitution ro.akes it the duty of the President to 
see that all the laws be executed. If any unforeseen and uncon- 
trollable emergency should arise endangering the existence of 
the Republic, and there were no legal provision or process by 
which the danger could be averted, the section of the Constitu- 
tion which says that "the President shall take care that the 
laws shall be faithfully executed" creates him, for the time 
being, as much a dictator as a decree of the Roman senate that 
the consul "should take care that the commonwealth should 

^ Representative Stevens, January 22, 1862. Congressional Globe, 37 
Cong., 2 Sess., 440 passim. 



492 CONSTITUTION IN THE CIVIL WAR 

receive no detriment" made him a dictator, and gave him all 
power necessary for the public safety, whether the means were 
inscribed on their tables or not. Of course such power would be 
limited by the necessity, and ought to exist only until Congress 
could be convened. The Romans, I believe, limited theirs to 
six months. But when Congress would assemble, they would 
possess the same full powers. They are authorized to raise ar- 
mies and navies; to organize and call out the militia "to sup- 
press insurrection and repel invasion." Lest these enumerated 
acts should prove insufficient, it wisely provides, that — 

"Congress shall have power to make all laws that shall be 
necessary and proper for carrying into execution the foregoing 
powers, and all other powers vested by this Constitution in the 
Government of the United States, or in any department or 
officer thereof." 

The Government is empowered to suppress insurrection ; its 
Executive is enjoined "to see all the laws faithfully executed;" 
Congress is granted power to pass all laws necessary to that 
end. If no other means were left to save the Republic from de- 
struction, I believe we have power, under the Constitution and 
according to its express provision, to declare a dictator, without 
confining the choice to any officer of the Government. . . . 

159. ^^ The Executive Power y^ 

The only supposed source or measure of these vast powers 
appears to have been designated by the President, in his reply 
to the address of the Chicago clergymen, in the following 
words: "Understand, I raise no objection against it on legal or 
constitutional grounds; for, as commander-in-chief of the army 
and navy, in time of war, I suppose I have a right to take any 
measure which may best subdue the enemy ^ This is a clear and 
frank declaration of the opinion of the President respecting 
the origin and extent of the power he supposes himself to 
possess; and, so far as I know, no source of these powers other 
than the authority of commander-in-chief in time of war, has ever 
been suggested. . . . 

^ Benjamin R. Curtis, The Executive Power (1862), passim. 



MARTIAL LAW AND CONSTITUTION 493 

. . . Indeed, the proclamation of September 24, 1862, fol- 
lowed by the orders of the war departm.ent, intended to carry 
it into practical effect, are manifest assumptions, by the Presi- 
dent, of powers delegated to the Congress and to the judicial 
departm_ent of the government. It is a clear and undoubted 
prerogative of Congress alone, to define all offences, and to 
affix to each some appropriate and not cruel or unusual pun- 
ishment. But this proclamation and these orders create new 
offences, not known to any law of the United States. "Dis- 
couraging enHstments," and "any disloyal practice," are not 
offences known to any law of the United States. At the same 
time, they may include, among many other things, acts which 
are offences against the laws of the United States, and, among 
others, treason. Under the Constitution and laws of the 
United States, except in cases arising in the land and naval 
forces, every person charged with an offence is expressly re- 
quired to be proceeded against, and tried by the judiciary of 
the United States and a jury of his peers; and he is required 
by the Constitution to be punished, in conformity with some 
act of Congress applicable to the offence proved, enacted before 
its commission. But this proclamation and these orders remove 
the accused from the jurisdiction of the judiciary; they sub- 
stitute a report, made by some deputy provost marshal, for the 
presentment of a grand jury; they put a military commission 
in place of a judicial court and jury required by the Constitu- 
tion; and they apply the discretion of the commission and the 
President, fixing the degree and kind of punishment, instead 
of the law of Congress fixing the penalty of the offence. . . . 

When the Constitution says that the President shall be the 
commander-in-chief of the army and navy of the United 
States, and of the militia of the several States when called into 
the actual service of the United States, does it mean that he 
shall possess military power and command over all citizens of the 
United States; that, by military edicts, he m.ay control all citi- 
zens, as if enlisted in the army or navy, or in the mihtia called 
into the actual service of the United States ? Does it mean that 
he may make himself a legislator, and enact penal laws govern- 



494 CONSTITUTION IN THE CIVIL WAR 

ing the citizens of the United States, and erect tribunals, and 
create offices to enforce his penal edicts upon citizens? Does it 
mean that he may, by a prospective executive decree, repeal 
and annul the laws of the several States, which respect subjects 
•reserved by the Constitution for the exclusive action of the 
States and the people ? The President is the commander-in- 
chief of the army and navy, not only by force of the Constitu- 
tion, but under and subject to the Constitution, and to every 
restriction therein contained, and to every law enacted by its 
authority, as completely and clearly as the private in his 
ranks. ... 

In time of war, a miHtary commander, whether he be the 
commander-in-chief, or one of his subordinates, must possess 
and exercise powers both over the persons and the property of 
citizens which do not exist in time of peace. But he possesses 
and exercises such powers, not in spite of the Constitution and 
laws of the United States, or in derogation from their authority, 
but in virtue thereof and in strict subordination thereto. The gen- 
eral who moves his army over private property in the course 
of his operations in the field, or who impresses into the public 
service means of transportation, or subsistence, to enable him 
to act against the enemy, or who seizes persons within his lines 
as spies, or destroys supplies in immediate danger of falling into 
the hands of the enemy, uses authority unknown to the Consti- 
tution and laws of the United States in time of peace; but not 
unknown to that Constitution and those laws in time of war. 
The power to declare war, includes the power to use the cus- 
tomary and necessary means effectually to carry it on. As Con- 
gress may institute a state of war, it may legislate into existence 
and place under executive control the means for its prosecution. 
And, in time of war, without any special legislation, not the 
commander-in-chief only, but every commander of an expedi- 
tion, or of a military post, is lawfully empowered by the Consti- 
tution and laws of the United States to do whatever is neces- 
sary, and is sanctioned by the laws of war, to accomplish the 
lawful objects of his command. But it is obvious that this 
impHed authority must find early Hmits somewhere. If it were 



MARTIAL LAW AND CONSTITUTION 495 

admitted that a commanding general in the field might do what- 
ever in his discretion might be necessary to subdue the enemy, 
he could levy contributions to pay his soldiers ; he could force 
conscripts into his service; he could drive out of the entire 
country all persons not desirous to aid him ; — in short, he 
would be the absolute master of the country for the time being. 

No one has ever supposed — no one will now undertake to 
maintain — that the commander-in-chief, in time of war, has 
any such lawful authority as this. 

What, then, is his authority over the persons and property 
of citizens? I answer, that, over all persons enHsted in his 
forces he has miHtary power and command; that over all per- 
sons and property within the sphere of his actual operations in 
the field, he may lawfully exercise such restraint and control 
as the successful prosecution of his particular miHtary enter- 
prise may, in his honest judgment, absolutely require; and upon 
such persons as have committed offences against any article 
of war, he may, through appropriate military tribunals, inflict 
the punishment prescribed by law. And there his lawful author- 
ity ends. 

160. Ex parte Milligan} 

Mr. Justice Davis delivered the opinion of the Court: 
. . . The controlling question in the case is this: Upon the 
facts stated in Milligan's petition, and the exhibits filed, had 
the military commission mentioned in it jurisdiction, legally, 
to try and sentence him ? Milligan, not a resident of one of the 
rebellious States, or a prisoner of war, but a citizen of Indiana 
for twenty years past, and never in the military or naval serv- 
ice, is, while at his home, arrested by the miHtary power of 
the United States, imprisoned, and, on certain criminal charges 
preferred against him, tried, convicted, and sentenced to be 
hanged by a military commission, organized under the direction 
of the miHtary commander of the miHtary district of Indiana. 
Had this tribunal the legal power and authority to try and 
punish this man ? . . . 

^ Supreme Court of the United States, 1867. 4 Wallace, 2. 



496 CONSTITUTION IN THE CIVIL WAR 

. . . The Constitution of the United States is a law for rulers 
and people, equally in war and in peace, and covers with the 
shield of its protection all classes of men, at all times, and under 
all circumstances. No doctrine involving more pernicious con- 
sequences was ever invented by the wit of man than that any 
of its provisions can be suspended during any of the great exi- 
gencies of government. Such a doctrine leads directly to an- 
archy or despotism, but the theory of necessity on which it is 
based is false; for the government, within the Constitution, 
has all the powers granted to it which are necessary to preserve 
its existence; as has been happily proved by the result of the 
great effort to throw off its just authority. 

Have any of the rights guaranteed by the Constitution 
been violated in the case of Milligan ? and if so, what are 
they? 

Every trial involves the exercise of judicial power ; and from 
what source did the military commission that tried him derive 
their authority ? Certainly no part of the judicial power of the 
country was conferred on them; because the Constitution ex- 
pressly vests it "in one supreme court and such inferior courts 
as the Congress may from time to time ordain and establish," 
and it is not pretended that the commission was a court 
ordained and established by Congress. They cannot justify 
on the mandate of the President, because he is controlled by 
law, and has his appropriate sphere of duty, which is to execute, 
not to make, the laws; and there is "no unwritten criminal code 
to which resort can be had as a source of jurisdiction." . . . 

. . . One of the plainest constitutional provisions was, there- 
fore, infringed when Milligan was tried by a court not ordained 
and established by Congress, and not composed of judges 
appointed during good behavior. . . . 

Another guarantee of freedom was broken when Milligan 
was denied a trial by jury. . . . 

The discipline necessary to the efficiency of the army and 
navy required other and swifter m.odes of trial than are fur- 
nished by the common-law , courts ; and, in pursuance of the 
power conferred by the Constitution, Congress has declared 



MARTIAL LAW AND CONSTITUTION 497 

the kinds of trial, and the manner in which they shall be con- 
ducted, for offenses committed while the party is in the military 
or naval service. Every one connected with thes^ branches' of 
the public service is amenable to the jurisdiction which Congress 
has created for their government, and, while thus serving, sur- 
renders his right to be tried by the civil courts. All other per- 
sons, citizens of States where the courts are open, if charged 
with crime, are guaranteed the inestimable privilege of trial 
by jury. This privilege is a vital principle, underlying the whole 
administration of criminal justice; it is not held by sufferance, 
and cannot be frittered away on any plea of State or political 
necessity. ... 

It is claimed that martial law covers with its broad mantle 
the proceedings of this military commission. The proposition 
is this : that in a time of war the commander of an armed force 
(if, in his opinion, the exigencies of the country demand it, 
and of which he is the judge) has the power, within the hnes 
of his military district, to suspend all civil rights and their 
remedies, and subject citizens as well as soldiers to the rule of 
his will; and in the exercise of his lawful authority cannot be 
restrained, except by his superior officer or the President of 
the United States. 

If this position is sound to the extent claimed, then when war 
exists, foreign or domestic, and the country is subdivided into 
military departments for mere convenience, the comm_ander 
of one of them can, if he chooses, within his limits, on the plea 
of necessity, with the approval of the Executive, substitute 
military force for, and to the exclusion of, the laws, and punish 
all persons, as he thinks right and proper, without fixed or 
certain rules. 

The statement of this proposition shows its importance ; for, 
if true, republican government is a failure, and there is an end 
of Hberty regulated by law, . . . 

. . . Unquestionably, there is then an exigency which 
demands that the government, if it should see fit, in the exer- 
cise of a proper discretion, to make arrests, should not be re- 
quired to produce the persons arrested in answer to a writ of 



498 CONSTITUTION IN THE CIVIL WAR 

habeas corpus. The Constitution goes no further. It does not 
say after a writ of habeas corpus is denied a citizen, that he 
shall be tried otherwise than by the course of the common law; 
if it had intended this result, it was easy by the use of direct 
words to have accomplished it. The illustrious men who 
framed that instrument were guarding the foundations of civil 
Hberty against the abuses of unlimited power; they were full of 
wisdom, and the lessons of history informed them that a trial 
by an established court, assisted by an impartial jury, was 
the only sure way of protecting the citizen against oppression 
and wrong. Knowing this, they limited the suspension to one 
great right, and left the rest to remain forever inviolable. But, 
it is insisted that the safety of the country in time of war de- 
mands that this broad claim for martial law shall be sustained. 
If this were true, it could be well said that a country, preserved 
at the sacrifice of all the cardinal principles of liberty, is not 
worth the cost of preservation. Happily, it is not so. 

It will be borne in mind that this is not a question of the 
power to proclaim martial law, when war exists in a community 
and the courts and civil authorities are overthrown. Nor is it 
a question what rule a military commander, at the head of his 
army, can impose on States in rebellion to cripple their re- 
sources and quell the insurrection. The jurisdiction claimed is 
much more extensive. The necessities of the service, during 
the late Rebellion, required that the loyal States should be 
placed within the limits of certain military districts and com- 
manders appointed in them; and, it is urged, that this, in a 
mihtary sense, constituted them the theatre of military opera- 
tions; and, as in this case, Indiana had been and was again 
threatened with invasion by the enemy, the occasion was fur- 
nished to establish martial law. The conclusion does not follow 
from the premises. If armies were collected in Indiana, they 
were to be em.ployed in another locality, where the laws were 
obstructed and the national authority disputed. On her soil 
there was no hostile foot; if once invaded, that invasion was at 
an end, and with it aU pretext for martial law. Martial law 
cannot arise from a threatened invasion. The necessity must 



MARTIAL LAW AND CONSTITUTION 499 

be actual and present; the invasion real, such as effectually 
closes the courts and deposes the civil administration. 

It is difficult to see how the safety of the country required 
martial law in Indiana. If any of her citizens were plotting 
treason, the power of arrest could secure them, until the govern- 
ment was prepared for their trial, when the courts were open and 
ready to try them. It was as easy to protect witnesses before 
a civil as a military tribunal ; and as there could be no wish to 
convict, except on sufficient legal evidence, surely an ordained 
and estabhshed court was better able to judge of this than a 
military tribunal composed of gentlemen not trained to the 
profession of the law. 

It follows, from what has been said on this subject, that there 
are occasions when martial rule can be properly applied. If, in 
foreign invasion or civil war, the courts are actually closed, and 
it is impossible to administer criminal justice according to law, 
then, on the theatre of active military operations, where war 
really prevails, there is a necessity to furnish a substitute for 
the civil authority, thus overthrown, to preserve the safety of 
the army and society; and as no power is left but the military, 
it is allowed to govern by martial rule until the laws can have 
their free course. As necessity creates the rale, so it limits its 
duration; for, if this government is continued after the courts 
are reinstated, it is a gross usurpation of power. Martial rule 
can never exist where the courts are open, and in the proper 
and unobstructed exercise of their jurisdiction. It is also con- 
fined to the locaHty of actual war. . . . 



CHAPTER LIV 

EMANCIPATION 

The evolution of the policy of the administration in dealing with rights 
of property in slaves may be traced by the following selections. Regarding 
the Emancipation Proclamation, it has been said trenchantly that, "as 
indicating the definitive adoption by the Executive of a radical policy 
on a vital issue, the proclamation was of the highest importance; but it 
did not strike the shackles from a single slave." The legal status of the 
freedmen was not established until the adoption of the Thirteenth Amend- 
ment. In the course of its opinion in the Slaughter-House Cases, the 
Supreme Court gave a definitive interpretation to this amendment. 

i6i. Contraband of War.^ 

The important question of the proper disposition to be made 
of fugitives from service in States in insurrection against the 
Federal Goverimient, to which you have again directed my 
attention in your letter of July 30, has received my most atten- 
tive consideration. 

It is the desire of the President that all existing rights, in all 
the States, be fully respected and maintained. The war now 
prosecuted on the part of the Federal Government is a war for 
the Union, and for the preservation of all constitutional rights 
of States, and the citizens of the States, in the Union. Hence 
no question can arise as to fugitives from service within the 
States and Territories in which the authority of the Union is 
fully acknowledged. The ordinary forms of judicial proceed- 
ing, which must be respected by military and civil authorities 
alike, will suffice for the enforcement of all legal claims. But in 
States wholly or partially under insurrectionary control, where 
the laws of the United States are so far opposed and resisted 
that they cannot be effectually enforced, it is obvious that 
. rights dependent on the execution of those laws must, tempor- 
arily, fail; and it is equally obvious that rights dependent on 

1 Secretary of War to General Butler, August 8, 1861. McPherson, 
Political History of the United States during the Great Rebellion, 245. 



EMANCIPATION 501 

the laws of the States within which miHtary operations are 
conducted must be necessarily subordinated to the miHtary 
exigencies created by the insurrection, if not wholly forfeited 
by the treasonable conduct of parties claiming them. To this 
general rule rights to services can form no exception. 

The act of Congress approved August 6, 1861, declares that 
if persons held to service shall be employed in hostility to the 
United States, the right to their services shall be forfeited, 
and such persons shall be discharged therefrom. It follows 
of necessity that no claim can be recognized by the military 
authorities of the Union to the services of such persons when 
■fugitives. 

A more difficult question is pree ^nted in respect to persons 
escaping from the service of loyal masters. It is quite apparent 
that the laws of the State, under which only the services of such 
fugitives can be claimed, must needs be wholly, or almost 
wholly, suspended, as to remedies, by the insurrection and the 
miHtary measures necessitated by it. And it is equally apparent 
that the substitution of military for judicial measures for the 
enforcement of such claims must be attended by great incon- 
veniences, embarrassments, and injuries. 

Under these circumstances it seems quite clear that the 
substantial rights of loyal masters will be best protected by 
receiving such fugitives, as well as fugitives from disloyal 
masters, into the service of the United States, and employing 
them under such organizations and in such occupations as 
circumstances may suggest or require. Of course a record 
should be kept showing the name and description of the fugi- 
tives, the name and the character, as loyal or disloyal, of the 
master, and such facts as may be necessary to a correct under- 
standing of the circumstances of each case after tranquilHty 
shall have been restored. Upon the return of peace, Congress 
will, doubtless, properly provide for all the persons thus 
received into the service of the Union, and for just compensa- 
tion to loyal masters. In this way only, it would seem, can the 
duty and the safety of the Government and the just rights of 
all be fully reconciled and harmonized. 



S02 CONSTITUTION IN THE CIVIL WAR 

You will therefore consider yourself as instructed to govern 
your future action, in respect to fugitives from service, by the 
principles herein stated, and you will report from time to time, 
and at least twice in each month, your action in the premises 
to this Department. You will, however, neither authorize nor 
permit any interference, by the troops under your command, 
with the servants of peaceful citizens in house or field; nor will 
you, in any way, encourage such servants to leave the lawful 
service of their masters; nor will you, except in cases where 
the public safety may seem to require, prevent the voluntary 
return of any fugitive to the service from which he may have 
escaped. 

162. Forfeiture of Slaves} 

... It is also provided that the slaves of persons convicted 
under these sections shall be free. I think there is an unfor- 
tunate form of expression, rather than a substantial objection, 
in this. It is startling to say that Congress can free a slave 
within a State, and yet if it were said that the ownership of 
the slave had first been transferred to the nation, and Congress 
had then liberated him, the difficulty would at once vanish. 
And this is the real case. The traitor against the General Gov- 
ernment forfeits his slave at least as justly as he does any other 
property; and he forfeits both to the Government against which 
he offends. The Government, so far as there can be owner- 
ship, thus owns the forfeited slaves, and the question for Con- 
gress in regard to them is, "shall they be made free or sold to 
new masters?" I perceive no objection to Congress deciding 
in advance that they shall be free. To the high honor of Ken- 
tucky, as I am informed, she has been the owner of some slaves 
by escheat, and has sold none, but liberated all. I hope the same 
is true of some other States. Indeed, I do not believe it will be 
physically possible for the General Government to return per- 
sons so circumstanced to actual slavery. I believe there would 

^ Richardson, Messages and Papers of the Presidents, vi,' 85-86. Veto 
message on the Confiscation Bill. President Lincoln concluded to approve 
the bill, but sent to Congress, July 17, 1862, a copy of the veto message 
which he had drafted. 



EMANCIPATION 503 

be physical resistance to it, which could neither be turned aside 
by argument nor driven away by force. In this view I have 
no objection to this feature of the bill. . . . 

163. Power of the President to Emancipate Slaves A 

The liberation of slaves is looked upon as a means of embar- 
rassing or weakening the enemy, or of strengthening the mili- 
tary power of our army. If slaves be treated as contraband of 
war, on the ground that they may be used by their masters to 
aid in prosecuting war, as employees upon military works, or as 
laborers furnishing by their industry the means of carrying on 
hostilities; or if they be treated as, in law, belligerents, following 
the legal condition of their owners ; or if they be deemed loyal 
subjects having a just claim upon the government to be released 
from their obligations to give aid and service to disloyal and 
belligerent masters, in order that they may be free to perform 
their higher duty of allegiance and loyalty to the United 
States ; or if they be regarded as subjects of the United States, 
liable to do military duty; or if they be made citizens of the 
United States, and soldiers; or if the authority of the masters 
over their slaves is the means of aiding and comforting the 
enemy, or of throwing impediments in the way of the govern- 
ment, or depriving it of such aid and assistance in successful 
prosecution of the war, as slaves would and could afford, if 
released from the control of the enemy, — or if releasing the 
slaves would embarrass the enemy, and make it more difificult 
for them to collect and maintain large armies ; in either of these 
cases, the taking away of these slaves from the ''aid and ser- 
vice" of the enemy, and putting them to the aid and service 
of the United States, is justifiable as an act of war. The ordin- 
ary way of depriving the enemy of slaves is by declaring eman- 
cipation. . . . 

The Constitution confers on the Executive, when in actual 
war, full belhgerent powers. The emancipation of enemy's 
slaves is a belligerent right. It belongs exclusively to the 

1 Whiting, War Powers of the President (1862), 66-68 passim. The 
author was solicitor-general in the War Department. 



504 CONSTITUTION IN THE CIVIL WAR 

President, as commander-in-chief, to judge whether he shall 
exercise his belligerent right to emancipate slaves in those 
parts of the country which are in rebellion. If exercised in fact, 
and while the war lasts, his act of emancipation is conclusive 
and binding forever on all the departments of government, 
and on all persons whatsoever. . . . 

164. Emancipation Proclamation} 

WHEREAS, on the twenty-second day of September, in the 
year of our Lord one thousand eight hundred and sixty-two, 
a proclamation was issued by the President of the United 
States, containing, among other things, the following, to wit: 

"That, on the twenty-second day of September, in the year 
of our Lord one thousand eight hundred and sixty-three, all 
persons held as slaves within any state or designated part of a 
state, the people whereof shall then be in rebellion against the 
United States, shall be then, thenceforward, and forever, free ; 
and the Executive Government of the United States, including 
the military and naval authority thereof, will recognize and 
maintain the freedom of such persons, and will do no act or 
acts to repress such persons, or any of them, in any efforts they 
may make for their actual freedom. 

"That the Executive will, on the first day of January afore- 
said, by proclamation, designate the states and parts of states, 
if any, in which the people thereof, respectively, shall then be 
in rebellion against the United States; and the fact that any 
state, or the people thereof, shall on that day be in good faith 
represented in the Congress of the United States, by members 
chosen thereto at elections wherein a majority of the quaUfied 
voters of such states shall have participated, shall, in the 
absence of strong countervailing testimony, be deemed con- 
clusive evidence that such state, and the people thereof, are 
not then in rebellion against the United States." 

Now, therefore, I, ABRAHAM LINCOLN, President of the 
United States, by virtue of the power in me vested as com- 
mander-in-chief of the army and navy of the United States, in 
^ United States Statutes at Large, xii, 1268-69. January i, 1863. 



EMANCIPATION 505 

time of actual armed rebellion against the authority and 
Government of the United States, and as a fit and necessary 
war measure for suppressing said rebellion, do, on this first day 
of January, in the year of our Lord one thousand eight hundred 
and sixty-three, and in accordance with my purpose so to do, 
publicly proclaimed for the full period of one hundred days 
from the day first above mentioned, order and designate as the 
states and parts of states wherein the people thereof, respect- 
ively, are this day in rebellion against the United States, the 
following, to wit: 

Arkansas, Texas, Louisiana, (except the parishes of St. 
Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. 
James, Ascension, Assumption, Terre Bonne, Lafourche, St. 
Mary, St. Martin, and Orleans, including the city of New 
Orleans,) Mississippi, Alabama, Florida, Georgia, South 
CaroHna, North Carolina, and Virginia, (except the forty-eight 
counties designated as West Virginia, and also the counties of 
Berkeley, Accomac, Northampton, Elizabeth City, York, 
Princess Ann, and Norfolk, including the cities of Norfolk and 
Portsmouth,) and which excepted parts are for the present left 
precisely as if this proclamation were not issued. 

And by virtue of the power and for the purpose aforesaid, 
I do order and declare that all persons held as slaves within 
said designated states and parts of states are, and hencefor- 
ward shall be, free; and that the Executive Government of the 
United States, including the military and naval authorities 
thereof, will recognize and maintain the freedom of said 
persons. 

And I hereby enjoin upon the people so declared to be free 
to abstain from all violence, unless in necessary self-defence; 
and I recommend to them that, in all cases when allowed, they 
labor faithfully for reasonable wages. 

And I further declare and make known that such persons, 
of suitable condition, will be received into the armed service 
of the United States to garrison forts, positions, stations, and 
other places, and to man vessels of all sorts in said service. 

And upon this act, sincerely believed to be an act of justice, 



5o6 CONSTITUTION IN THE CIVIL WAR 

warranted by the Constitution upon military necessity, I 
invoke the considerate judgment of mankind and the gracious 
favor of Almighty God. 



165. Resolution of Congress freeing Soldiers^ Families} 

Resolved . . . , That, for the purpose of encouraging enlist- 
ments and promoting the efficiency of the military and naval 
forces of the United States, it is hereby enacted that the wife 
and children, if any he have, of any person that has been, or 
may be, mustered into the military or naval service of the 
United States, shall, from and after the passage of this act, 
be forever free, any law, usage, or custom whatsoever to the 
contrary notwithstanding. . . . 

166. The Thirteenth Amendment? 

ARTICLE XIII '' 

Section i. Neither slavery nor involuntary servitude, ex- 
cept as a punishment for crime whereof the party shall have 
been duly convicted, shall exist within the United States or any 
place subject to their jurisdiction. 

Section 2. Congress shall have power to enforce this 
article by appropriate legislation. 

167. Judicial Interpretation of the Thirteenth Amendment.^ 

. . . The institution of African slavery, as it existed in about 
half the States of the Union, and the contests pervading the 
public mind for many years, between those who desired its cur- 
tailment and ultimate extinction and those who desired addi- 
tional safeguards for its security and perpetuation, culminated 
in the effort, on the part of most of the States in which slavery 
existed, to separate from the Federal government, and to resist 
its authority. This constituted the war of the rebellion, and 

1 United States Statutes at Large, xin, 571. March 3, 1865. 
^ This amendment went into effect December 18, 1865. Revised Statutes 
of the United States (1878), 30. 
^ Slaughter-House Cases, 1873. 16 Wallace, 36. 



EMANCIPATION 507 

whatever auxiliary causes may have contributed to bring about 
this war, undoubtedly the overshadowing and efl&cient cause 
was African slavery. 

In that struggle slavery, as a legalized social relation, per- 
ished. It perished as a necessity of the bitterness and force of 
the conflict. When the armies of freedom found themselves 
upon the soil of slavery they could do nothing less than free 
the poor victims whose enforced servitude was the foundation 
of the quarrel. And when hard pressed in the contest these men 
(for they proved themselves men in that terrible crisis) offered 
their services and were accepted by thousands to aid in sup- 
pressing the unlawful rebellion, slavery was at an end wherever 
the Federal government succeeded in that purpose. The pro- 
clamation of President Lincoln expressed an accomplished fact 
as to a large portion of the insurrectionary districts, when he 
declared slavery abolished in them all. But the war being over, 
those who had succeeded in re-establishing the authority of 
the Federal government were not content to permit this great 
act of emancipation to rest on the actual results of the contest 
or the proclamation of the Executive, both of which might 
have been questioned in after times, and they determined to 
place this main and most valuable result in the Constitution 
of the restored Union as one of its fundamental articles. Hence 
the thirteenth article of amendment of that instrument. Its two 
short sections seem hardly to admit of construction, so vigorous 
is their expression and so appropriate to the purpose we have 
indicated. . . . 

To withdraw the mind from the contemplation of this grand 
yet simple declaration of the personal freedom of all the human 
race within the jurisdiction of this government — a declaration 
designed to establish the freedom of four milHon of slaves — 
and with a microscopic search endeavor to find in it a reference 
to servitudes, which may have been attached to property in 
certain localities, requires an effort, to say the least of it. 

That a personal servitude was meant is proved by the use of 
the word "involuntary," which can only apply to human 
beings. The exception of servitude as a punishment for crime 



5o8 CONSTITUTION IN THE CIVIL WAR 

gives an idea of the class of servitude that is meant. The word 
"servitude" is of larger meaning than slavery, as the latter is 
popularly understood in this country, and the obvious purpose 
was to forbid all shades and conditions of African slavery. It 
was very well understood that in the form of apprenticeship 
for long terms, as it had been practiced in the West India 
Islands, on the abolition of slavery by the English government, 
or by reducing the slaves to the condition of serfs attached to 
the plantation, the purpose of the article might have been 
evaded, if only the word "slavery" had been used. . . . 



PART NINE. THE RECONSTRUCTION OF 
THE UNION 

CHAPTER LV 

PRESIDENTIAL RESTORATION 

The triumph of the Union armies settled, so far as might can settle a 
question of right, the vexing question of national versus state sovereignty. 
Secession had been tried and had failed. The doctrine of state sovereignty 
could no longer be upheld as a constitutional principle. But among the 
questions which the war did not and could not settle was the extent of 
the rights in the Union of the States which had rebelled. Avoiding the 
theoretical aspects of the problem, President Lincoln sought to effect 
a direct and simple restoration of the States upon the same principles 
which he had adopted at the beginning of the war. President Johnson 
continued the work of restoration on much the same theory. 

1 68. President Lincoln's Proclamation of Amnesty} 

Whereas , . . 

Therefore, I, Abraham Lincoln, President of the United 
States, do proclaim, declare, and make known to all persons 
who have, directly or by implication, participated in the exist- 
ing rebellion, except as hereinafter excepted, that a full pardon 
is hereby granted to them and each of them, with restoration 
of all rights of property, except as to slaves and in property 
cases where rights of third parties shall have intervened, and 
upon the condition that every such person shall take and sub- 
scribe an oath and thenceforward keep and maintain said oath 
inviolate, and which oath shall be registered for permanent 
preservation and shall be of the tenor and effect following, to 
wit: 

I, , do solemnly sv/ear, in presence of Almighty God, 

that I will henceforth faithfully support, protect, and defend the 
Constitution of the United States, and the Union of the States 

^ December 8, 1863. Richardson, Messages and Papers of the Presidents, 
VI, 213-15. 



5IO RECONSTRUCTION OF THE UNION 

thereunder; and that I will in like manner abide by and faithfully 
support all acts of Congress passed during the existing rebellion 
with reference to slaves, so long and so far as not repealed, modi- 
fied, or held void by Congress or by decision of the Supreme Court; 
and that I will in like manner abide by and faithfully support all 
proclamations of the President during the existing rebellion having 
reference to slaves, so long and so far as not modified or declared 
void by decision of the Supreme Court. So help me God. 

The persons excepted from the benefits of the foregoing 
provisions are all who are or shall have been civil or diplomatic 
officers or agents of the so-called Confederate Government ; all 
who have left judicial stations under the United States to aid 
the rebellion ; all who are or shall have been military or naval 
officers of said so-called Confederate Government above the 
rank of colonel in the army or of lieutenant in the navy; all who 
left seats in the United States Congress to aid the rebelHon ; all 
who resigned commissions in the Army or Navy of the United 
States and afterwards aided the rebellion; and all who have 
engaged in any way in treating colored persons, or white per- 
sons in charge of such, otherwise than lawfully as prisoners of 
war, and which persons may have been found in the United 
States ser\dce as soldiers, seamen, or in any other capacity. 

And I do further proclaim, and make known that whenever, 
in any of the States of Arkansas, Texas, Louisiana, Mississippi, 
Tennessee, Alabama, Georgia, Florida, South Carohna, and 
North Carolina, a number of persons, not less than one- tenth in 
number of the votes cast in such State at the Presidential elec- 
tion of the year a. d. i860, each having taken the oath afore- 
said, and not having since violated it, and being a qualified 
voter by the election law of the State existing immediately 
before the so-called act of secession, and excluding all others, 
shall reestablish a State government which shall be repubHcan 
and in nowise contravening said oath, such shall be recognized 
as the true government of the State, and the State shall receive 
thereunder the benefits of the constitutional provision which 
declares that "the United States shall guarantee to every State 
in this Union a republican form of government and shall pro- 



PRESIDENTIAL RESTORATION 511 

tect each of them against invasion, and, on application of the 
legislature, or the executive (when the legislature can not be 
convened), against domestic violence." 

And I do further proclaim, declare, and make known that 
any provision which may be adopted by such State govern- 
ment in relation to the freed people of such State which shall 
recognize and declare their permanent freedom, provide for 
their education, and which may yet be consistent as a tempo- 
rary arrangement with their present condition as a laboring, 
landless, and homeless class, will not be objected to by the 
National Executive. 

And it is suggested as not improper that in constructing 
a loyal State government in any State the name of the State, 
the boundary, the subdivisions, the constitution, and the gen- 
eral code of laws as before the rebellion be maintained, subject 
only to the modifications made necessary by the conditions 
hereinbefore stated, and such others, if any, not contravening 
said conditions and which may be deemed expedient by those 
framing the new State Government. 

To avoid misunderstanding, it may be proper to say that 
this proclamation, so far as it relates to State governments, has 
no reference to States wherein loyal State governments have 
all the while been maintained. And for the same reason it may 
be proper to further say that whether members sent to Con-. 
gress from any State shall be admitted to seats constitutionally 
rests exclusively with the respective Houses, and not to any 
extent with the Executive. And, still further, that this procla- 
mation is intended to present the people of the States wherein 
the national authority has been suspended and loyal State 
governments have been subverted a mode in and by which the 
national authority and loyal State governments may be re- 
established within said States or in any of them ; and while the 
mode presented is the best the Executive can suggest, with his 
present impressions, it must not be understood that no other 
possible mode would be acceptable. . . . 



512 RECONSTRUCTION OF THE UNION 

169. Last Speech of President Lincoln} 

We all agree that the seceded States, so called, are out of 
their proper practical relation with the Union, and that the sole 
object of the Government, civil and mihtary, in regard to those 
States is to again get them into that proper practical relation. I 
beheve that it is not only possible, but in fact easier, to do this 
without deciding or even considering whether these States have 
ever been out of the Union, than with it. Finding themselves 
safely at home, it would be utterly immaterial whether they 
had ever been abroad. Let us all join in doing the acts neces- 
sary to restore the proper practical relations between these 
States and the Union, and each forever after innocently indulge 
his own opinion whether in doing the acts he brought the States 
from without into the Union, or only gave them proper assist- 
ance, they never having been out of it. . . . 

1 70. Appointment of a Provisional Governor for North Carolina} 

Whereas the fourth section of the fourth article of the Con- 
stitution of the United States declares that the United States 
shall guarantee to every State in the Union a republican form of 
government and shall protect each of them against invasion 
and domestic violence; and 

Whereas the President of the United States is by the Con- 
stitution made Commander in Chief of the Army and Navy, as 
well as chief civil executive officer of the United States, and is 
bound by solemn oath faithfully to execute the office of Presi- 
dent of the United States and to take care that the laws be 
faithfully executed ; and 

Whereas the rebellion which has been waged by a portion of 
the people of the United States against the properly constituted 
authorities of the Government thereof in the most violent and 
revolting form, but whose organized and armed forces have 
now been almost entirely overcome, has in its revolutionary 

^ April II, 1865. Nicholay and Hay, Complete Works of Lincoln, 11, 672. 
^ May 29, 1865. Richardson, Messages and Papers of the Presidents, vi, 
312-14. 



PRESIDENTIAL RESTORATION 513 

progress deprived the people of the State of North Carolina of 
all civil government; and 

Whereas it becomes necessary and proper to carry out and 
enforce the obligations of the United States to the people of 
North CaroHna in securing them in the enjoyment of a republi- 
can form of government : 

Now, therefore, in obedience to the high and solemn duties 
imposed upon me by the Constitution of the United States and 
for the purpose of enabling the loyal people of said State to 
organize a State government whereby justice may be estab- 
lished, domestic tranquillity insured, and loyal citizens pro- 
tected in all their rights of life, liberty, and property, I, Andrew 
Johnson, President of the United States and Commander in 
Chief of the Army and Navy of the United States, do hereby 
appoint WilHam W. Holden provisional governor of the State 
of North Carolina, whose duty it shall be, at the earliest prac- 
ticable period, to prescribe such rules and regulations as may be 
necessary and proper for convening a convention composed of 
delegates to be chosen by that portion of the people of said 
State who are loyal to the United States, and no others, for the 
purpose of altering or amending the constitution thereof, and 
with authority to exercise within the limits of said State all the 
powers necessary and proper to enable such loyal people of the 
State of North Carolina to restore said State to its constitu- 
tional relations to the Federal Government and to present such 
a republican form of State government as will entitle the State 
to the guaranty of the United States therefor and its people to 
protection by the United States against invasion, insurrection, 
and domestic violence: Provided, That in any election that 
may hereafter be held for choosing delegates to any State con- 
vention as aforesaid no person shall be quahfied as an elector 
or shall be eligible as a member of such convention unless he 
shall have previously taken and subscribed the oath of amnesty 
as set forth in the President's proclamation of May 29, a. d. 
1865, and is a voter qualified as prescribed by the constitution 
and laws of the State of North Carolina in force immediately 
before the 20th day of May a. d. 1861, the date of the so-called 



514 RECONSTRUCTION OF THE UNION 

ordinance of secession ; and the said convention, when convened, 
or the legislature that may be thereafter assembled, will pre- 
scribe the qualification of electors and the eligibility of persons 
to hold office under the constitution and laws of the State — a 
power the people of the several States composing the Federal 
Union have rightfully exercised from the origin of the Govern- 
ment to the present time. 

And I do hereby direct — 

First. That the military commander of the department and 
all officers and persons in the military and naval service aid and 
assist the said provisional governor in carrying into effect this 
proclamation; and they are enjoined to abstain from in any 
way hindering, impeding, or discouraging the loyal people from 
the organization of a State government as herein authorized. 

Second. That the Secretary of State proceed to put in force 
all laws of the United States the administration whereof be- 
longs to the State Department applicable to the geographical 
limits aforesaid. 

Third. That the Secretary of the Treasury proceed to nomi- 
nate for appointment assessors of taxes and collectors of cus- 
toms and internal revenue and such other officers of the Treas- 
ury Department as are authorized by law and put in execution 
the revenue laws of the United States within the geographical 
limits aforesaid. In making appointments the preference shall 
be given to qualified loyal persons residing within the districts 
where their respective duties are to be performed; but if suit- 
able residents of the district shall not be found, then persons 
residing in other States or districts shall be appointed. 

Fourth. That the Postmaster- General proceed to establish 
post-offices and post routes and put into execution the postal 
laws of the United States within the said State, giving to loyal 
residents the preference of appointment; but if suitable resi- 
dents are not found, then to appoint agents, etc., from other 
States. 

Fifth. That the district judge for the judicial district in 
which North Carolina is included proceed to hold courts within 
said State in accordance with the provisions of the Act of Con- 



PRESIDENTIAL RESTORATION 515 

gress. The Attorney- General will instruct the proper ofScers to 
libel and bring to judgment, confiscation, and sale property 
subject to confiscation and enforce the administration of justice 
within said State in all matters within the cognizance and juris- 
diction of the Federal courts. 

Sixth. That the Secretary of the Navy take possession of all 
public property belonging to the Navy Department within said 
geographical limits and put in operation all acts of Congress in 
relation to naval affairs having application to the said State. 

Seventh. That the Secretary of the Interior put in force the 
laws relating to the Interior Department applicable to the 
geographical Hmits aforesaid. . . . 

171. First Annual Message of President Johnson} 

The Union of the United States of America was intended by 
its authors to last as long as the States themselves shall last. 
"The Union shall be perpetual " are the words of the Confeder- 
ation. " To form a more perfect Union," by an ordinance of the 
people of the United States, is the declared purpose of the 
Constitution. ... 

The perpetuity of the Constitution brings with it the per- 
petuity of the States ; their mutual relation makes us what we 
are, and in our poHtical system their connection is indissoluble. 
The whole can not exist without the parts, nor the parts with- 
out the whole. So long as the Constitution of the United States 
endures, the States will endure. The destruction of the one is 
the destruction of the other ; the preservation of the one is the 
preservation of the other. 

I have thus explained my views of the mutual relations of the 
Constitution and the States, because they unfold the principles 
on which I have sought to solve the momentous questions and 
overcome the appalKng difficulties that met me at the very 
commencement of my Administration. . . . 

I found the States suffering from the effects of a civil war. 
Resistance to the General Government appeared to have ex- 

^ December 4, 1865. Richardson, Messages and Papers of the Presidents, 
VI, 353-58 passim. 
i 



Si6 RECONSTRUCTION OF THE UNION 

hausted itself. The United States had recovered possession of 
their forts and arsenals, and their armies were in the occupation 
of every State which had attempted to secede. Whether the 
territory within the limits of those States should be held as 
conquered territory, under military authority emanating from 
the President as the head of the Army, was the first question 
that presented itself for decision. 

Now military governments, established for an indefinite 
period, would have offered no security for the early suppression 
of discontent, would have divided the people into the vanquish- 
ers and the vanquished, and would have envenomed hatred 
rather than have restored affection. . . . 

Besides, the policy of military rule over a conquered territory 
would have implied that the States whose inhabitants may 
have taken part in the rebellion had by the act of those inhabi- 
tants ceased to exist. But the true theory is that all pretended 
acts of secession were from the beginning null and void. The 
States can not commit treason nor screen the individual citizens 
who may have committed treason any more than they can 
make valid treaties or engage in lawful commerce with any 
foreign power. The States attempting to secede placed them- 
selves in a condition where their vitality was impaired, but not 
extinguished; their functions suspended, but not destroyed. 

But if any State neglects or refuses to perform its offices there 
is the more need that the General Government should maintain 
all its authority and as soon as practicable resume the exercise 
of all its functions. On this principle I have acted, and have 
gradually and quietly, and by almost imperceptible steps, 
sought to restore the rightful energy of the General Govern- 
ment and of the States. To that end provisional governors have 
been appointed for the States, conventions called, governors 
elected, legislatures assembled, and Senators and Representa- 
tives chosen to the Congress of the United States. At the same 
time the courts of the United States, as far as could be done, 
have been reopened, so that the laws of the United States may 
be enforced through their agency. The blockade has been re- 
moved and the custom-houses reestablished in the ports of 



PRESIDENTIAL RESTORATION 517 

entry, so that the revenue of the United States may be col- 
lected. The Post-Office Department renews its ceaseless activ- 
ity, and the General Government is thereby enabled to com- 
municate promptly with its officers and agents. The courts 
bring security to persons and property; the opening of the ports 
invites the restoration of industry and commerce; the post- 
office renews the facilities of social intercourse and of busi- 
ness. . . . 

I know very well that this policy is attended with some risk; 
that for its success it requires at least the acquiescence of the 
States which it concerns; that it implies an invitation to those 
States, by renewing their allegiance to the United States, to 
resume their functions as States of the Union. But it is a risk 
that must be taken. In the choice of difficulties it is the small- 
est risk; and to diminish and if possible to remove all danger, I 
have felt it incumbent on me to assert one other power of the 
General Government — the power of pardon. . . . 

The next step which I have taken to restore the constitu- 
tional relations of the States has been an invitation to them to 
participate in the high office of amending the Constitution. . , . 

It is not too much to ask, in the name of the whole people, 
that on the one side the plan of restoration shall proceed in 
conformity with a willingness to cast the disorders of the past 
into oblivion, and that on the other the evidence of sincerity in 
the future maintenance of the Union shall be put beyond any 
doubt by the ratification of the proposed amendment to the 
Constitution, which provides for the abolition of slavery for- 
ever within the limits of our country. . . . 

The amendment to the Constitution being adopted, it would 
remain for the States whose powers have been so long in abey- 
ance to resume their places in the two branches of the National 
Legislature, and thereby complete the work of restoration. 
Here it is for you, fellow-citizens of the Senate, and for you, 
fellow-citizens of the House of Representatives, to judge, each 
of you for yourselves, of the elections, returns, and quaHfica- 
tions of your own members. . . . 



CHAPTER LVI 

ORIGIN OF THE FOURTEENTH AMENDMENT 

The appointment of a joint committee of the House and Senate, to 
inquire into the condition of the States lately in rebellion and to report 
whether any of them was entitled to representation in Congress, was 
tantamount to a declaration that Congress would not recognize the state 
governments which had been restored by the President. The enactment 
of the so-called "black codes" by these Southern legislatures led Congress 
to frame two remedial measures — the Freedmen's Bureau Bill and the 
Civil Rights Bill. Both were vetoed; but the latter was passed over the 
veto. On the last day of April, 1866, the Joint Committee on Reconstruc- 
tion laid before Congress a joint resolution proposing a fourteenth amend- 
ment to the Constitution. This was followed on June 18 by an elaborate 
report. The first section of the amendment as it passed the House was 
formulated by Bingham of Ohio: the first clause, defining citizenship, was 
added by the Senate. In view of the subsequent interpretation of this 
important section by the Supreme Court, the speeches of Bingham and 
of Howard, who championed the amendment in the Senate, are of much 
significance. 

172. Report of the Joint Committee on Reconstruction} 

Your committee came to the consideration of the subject 
referred to them with the most anxious desire to ascertain what 
was the condition of the people of the States recently in insur- 
rection, and what, if anything, was necessary to be done before 
restoring them to the full enjoyment of all their original priv- 
ileges. It was undeniable that the war into which they had 
plunged the country had materially changed their relations to 
the people of the loyal States. Slavery had been abolished by 
constitutional amendment. A large proportion of the popula- 
tion had become, instead of mere chattels, free men and citi- 
zens. Through all the past struggle these had remained true 
and loyal, and had, in large numbers, fought on the side of the 
Union. It was impossible to abandon them, without securing 

^ Report of the Joint Committee on Reconstruction, June 18, 1866, xin- 
XXI passim. 



ORIGIN OF THE XIV AMENDMENT 519 

them their rights as free men and citizens. The whole civilized 
world would have cried out against such base ingratitude, and 
the bare idea is offensive to all right-thinking men. Hence it 
became important to inquire what could be done to secure their 
rights, civil and political. It was evident to your committee 
that adequate security could only be found in appropriate con- 
stitutional provisions. By an original provision of the Consti- 
tution, representation is based on the whole number of free 
persons in each State, and three-fifths of all other persons. 
When all become free, representation for all necessarily follows. 
As a consequence the inevitable effect of the rebellion would be 
to increase the political power of the insurrectionary States, 
whenever they should be allowed to resume their positions as 
States of the Union. As representation is by the Constitution 
based upon population, your committee did not think it advis- 
able to recommend a change of that basis. The increase of 
representation necessarily resulting from the abolition of 
slavery was considered the most important element in the 
questions arising out of the changed condition of affairs, and 
the necessity for some fundamental action in this regard 
seemed imperative. It appeared to your committee that the 
rights of these persons by whom the basis of representation had 
been thus increased should be recognized by the general gov- 
ernment. While slaves they were not considered as having any 
rights, civil or pohtical. It did not seem just or proper that all 
the pohtical advantages derived from their becoming free 
should be confined to their former masters, who had fought 
against the Union, and withheld from themselves, who had 
always been loyal. Slavery, by building up a ruhng and domin- 
nant class, had produced a spirit of oligarchy adverse to re- 
pubUcan institutions, which finally inaugurated civil war. The 
tendency of continuing the domination of such a class, by 
leaving it in the exclusive possession of pohtical power, would 
be to encourage the same spirit, and lead to a similar result. 
Doubts were entertained whether Congress had power, even 
under the amended Constitution, to prescribe the quaUfications 
of voters in a State, or could act directly on the subject. It was 



520 RECONSTRUCTION OF THE UNION 

doubtful, in the opinion of your committee, whether the States 
would consent to surrender a power they had always exercised, 
and to which they were attached. As the best if not the only 
method of surmounting the difl&culty, and as eminently just 
and proper in itself, your committee came to the conclusion 
that political power should be possessed in all the States exactly 
in proportion as the right of suffrage should be granted, without 
distinction of color or race. This it was thought would leave 
the whole question with the people of each State, holding out 
to all the advantage of increased political power as an induce- 
ment to allow all to participate in its exercise. Such a provision 
would be in its nature gentle and persuasive, and would lead, it 
was hoped, at no distant day, to an equal participation of all, 
without distinction, in all the rights and privileges of citizen- 
ship, thus affording a full and adequate protection to all classes 
of citizens, since all would have, through the ballot-box, the 
power of self-protection. . . . 

. . . The conclusion of your committee therefore is, that the 
so-called Confederate States are not, at present, entitled to 
representation in the Congress of the United States; that, be- 
fore allowing such representation, adequate security for future 
peace and safety should be required; that this can only be found 
in such changes of the organic law as shall determine the civil 
rights and privileges of all citizens in all parts of the republic, 
shall place representation on an equitable basis, shall fix a 
stigma upon treason, and protect the loyal people against fu- 
ture claims for the expenses incurred in support of rebelHon and 
for manumitted slaves, together with an express grant of power 
in Congress to enforce those provisions. To this end they offer 
a joint resolution for amending the Constitution of the United 
States, and the two several bills designed to carry the same 
into effect, before referred to. . . . 

173. Representative Bingham on the Joint Resolution} 

The necessity for the first section of this amendment to the 
Constitution, Mr. Speaker, is one of the lessons that have been 

^ ^ Congressional Globe, 39 Cong., i Sess., 2542-43. May 10, 1866. 



ORIGIN OF THE XIV AMENDMENT 521 

taught to your committee and taught to all the people of this 
country by the history of the past four years of terrific conflict 
— that history in which God is, and in which He teaches the 
profoundest lessons to men and nations. There was a want 
hitherto, and there remains a want now, in the Constitution of 
our country, which the proposed amendment will supply. 
What is that? It is the power in the people, the whole people of 
the United States, by express authority of the Constitution to 
do that by congressional enactment which hitherto they have 
not had the power to do, and have never even attempted to do ; 
that is, to protect by national law the privileges and immunities 
of all the citizens of the RepubHc and the inborn rights of every 
person within its jurisdiction whenever the same shall be 
abridged or denied by the unconstitutional acts of any State. 

Allow me, Mr. Speaker, in passing, to say that this amend- 
ment takes from no State any right that ever pertained to it. 
No State ever had the right, under the forms of law or other- 
wise, to deny to any freeman the equal protection of the laws or 
to abridge the privileges or immunities of any citizen of the 
Republic, although many of them have assumed and exercised 
the power, and that without remedy. The amendment does not 
give, as the second section shows, the power to Congress of 
regulating suffrage in the several States. 

The second section excludes the conclusion that by the first 
section suffrage is subjected to congressional law; save, indeed, 
with this exception, that as the right in the people of each State 
to a republican government and to choose their Representa- 
tives in Congress is one of the guarantees of the Constitution, 
by this amendment a remedy might be given directly for a 
case supposed by Madison, where treason might change a State 
government from a republican to a despotic government, and 
thereby deny suffrage to the people. Why should any American 
citizen object to that? But, sir, it has been suggested, not here, 
but elsewhere, if this section does not confer suffrage the need 
of it is not perceived. To all such I beg leave again to say, that 
many instances of State injustice and oppression have already 
occurred in the State legislation of this Union, of flagrant vio- 



522 RECONSTRUCTION OF THE UNION 

lations of the guarantied privileges of citizens of the United 
States, for which the national Government furnished and could 
furnish by law no remedy whatever. Contrary to the express 
letter of your Constitution, "cruel and unusual punishments" 
have been inflicted under State laws within this Union upon 
citizens, not only for crimes committed, but for sacred duty 
done, for which and against which the Government of the 
United States had provided no remedy and could provide none. 

Sir, the words of the Constitution that "the citizens of each 
State shall be entitled to all privileges and immunities of citi- 
zens in the several States" include, among other privileges, the 
right to bear true allegiance to the Constitution and laws of the 
United States, and to be protected in life, liberty, and property. 
Next, sir, to the allegiance which we all owe to God our Creator, 
is the allegiance which we owe to our common country. 

The time was in our history, thirty-three years ago, when, in 
the State of South Carolina, by solemn ordinance adopted in a 
convention held under the authority of State law, it was or- 
dained, as a part of the fundamental law of that State, that the 
citizens of South Carolina, being citizens of the United States 
as well, should abjure their allegiance to every other govern- 
ment or authority than that of the State of South Caro- 
lina. . . . 

There was also, as gentlemen know, an attempt made at the 
same time by that State to nullify the revenue laws of the 
United States. What was the legislation of Congress in that 
day to meet this usurpation of authority by that State, viola- 
tive alike of the rights of the national Government and of the 
rights of the citizen? 

. . . They provided a remedy by law for the invasion of the 
rights of the Federal Government and for the protection of its 
ofhcials and those assisting them in executing the revenue laws. 
(See 4 Statutes-at-Large, 632-33.) No remedy was provided to 
protect the citizen. Why was the act to provide for the collec- 
tion of the revenue passed, and to protect all acting under it, 
and no protection given to secure the citizen against punish- 
ment for fidelity to his country? But one answer can be given. 



ORIGIN OF THE XIV AMENDMENT 523 

There was in the Constitution of the United States an express 
grant of power to the Federal Congress to lay and collect duties 
and imposts and to pass all laws necessary to carry that grant 
of power into execution. But, sir, that body of great and pa- 
triotic men looked in vain for any grant of power in the Consti- 
tution by which to give protection to the citizens of the United 
States resident in South Carolina against the infamous pro- 
vision of the ordinance which required them to abjure the alle- 
giance which they owed their country. It was an opprobrium to 
the Republic that for fidelity to the United States they could 
not by national law be protected against the degrading pun- 
ishment inflicted on slaves and felons by State law. That great 
want of the citizen and stranger, protection by national law 
from unconstitutional State enactments, is supplied by the 
first section of this amendment. That is the extent that it hath, 
no more; and let gentlemen answer to God and their country 
who oppose its incorporation into the organic law of the 
land. . . . 

174. Senator Howard on the Joint Resolution} 

The first clause of this section relates to the privileges and 
immunities of citizens of the United States as such, and as 
distinguished from all other persons not citizens of the United 
States. It is not, perhaps, very easy to define with accuracy 
what is meant by the expression, "citizen of the United States," 
although that expression occurs twice in the Constitution, once 
in reference to the President of the United States, in which 
instance it is declared that none but a citizen of the United 
States shall be President, and again in reference to Senators, 
who are likewise to be citizens of the United States. Undoubt- 
edly the expression is used in both those instances in the same 
sense in which it is employed in the amendment now before us. 
A citizen of the United States is held by the courts to be a per- 
son who was born within the limits of the United States and 
subject to their laws. Before the adoption of the Constitution 
of the United States, the citizens of each State were, in a quali- 
^ Congressional Globe, 39 Cong., i Sess., 2765-66. May 23, 1866. 



524 RECONSTRUCTION OF THE UNION 

fied sense at least, aliens to one another, for the reason that the 
several States before that event were regarded by each other 
as independent Governments, each one possessing a sufficiency 
of sovereign power to enable it to claim the right of naturaliza- 
tion; and, undoubtedly, each one of them possessed for itself 
the right of naturalizing foreigners, and each one, also, if it had 
seen fit so to exercise its sovereign power, might have declared 
the citizens of every other State to be aliens in reference to 
itself. With a view to prevent such confusion and disorder, and 
to put the citizens of the several States on an equality with each 
other as to all fundamental rights, a clause was introduced in 
the Constitution declaring that "the citizens of each State shall 
be entitled to all privileges and immunities of citizens in the 
several States." 

The effect of this clause was to constitute ipso facto the citi- 
zens of each one of the original States citizens of the United 
States. And how did they antecedently become citizens of the 
several States? By birth or by naturalization. They became 
such in virtue of national law, or rather of natural law which 
recognizes persons born within the jurisdiction of every country 
as being subjects or citizens of that country. Such persons 
were, therefore, citizens of the United States, as were born in 
the country or were made such by naturalizati(3n ; and the Con- 
stitution declares that they are entitled, as citizens, to all the 
privileges and immunities of citizens in the several States. 
They are, by constitutional right, entitled to these privileges 
and immunities, and may assert this right and these privileges 
and immunities, and ask for their enforcement whenever they 
go within the limits of the several States of the Union. . . . 

Now, sir, here is a mass of privileges, immunities, and 
rights, some of them secured by the second section of the 
fourth article of the Constitution, which I have recited, some 
by the first eight amendments of the Constitution; and it is a 
fact well worthy of attention that the course of decision of our 
courts and the present settled doctrine is, that all these immuni- 
ties, privileges, rights, thus guarantied by the Constitution or 
recognized by it, are secured to the citizen solely as a citizen of 



ORIGIN OF THE XIV AMENDMENT 525 

the United States and as a party in their courts. They do not 
operate in the slightest degree as a restraint or prohibition upon 
State legislation. States are not affected by them, and it has 
been repeatedly held that the restriction contained in the Con- 
stitution against the taking of private property for public use 
without just, compensation is not a restriction upon State 
legislation, but applies only to the legislation of Congress. 

Now, sir, there is no power given in the Constitution to 
enforce and to carry out any of these guarantees. They are 
not powers granted by the Constitution to Congress, and of 
course do not come within the sweeping clause of the Constitu- 
tion authorizing Congress to pass all laws necessary and proper 
for carrying out the foregoing or granted powers, but they 
stand simply as a bill of rights in the Constitution, without 
power on the part of Congress to give them full effect; while 
at the same time the States are not restrained from violating 
the principles embraced in them except by their own local 
constitutions, which may be altered from year to year. The 
great object of the first section of this amendment is, therefore, 
to restrain the power of the States and compel them at all times 
to respect these great fundamental guarantees. How will it 
be done under the present amendm.ent? As I have remarked, 
they are not powers granted to Congress, and therefore it is 
necessary, if they are to be effectuated and enforced, as they 
assuredly ought to be, that additional power should be given 
to Congress to that end. This is done by the fifth section of this 
amendment, which declares that ''the Congress shall have 
power to enforce by appropriate legislation the provisions of 
this article." Here is a direct affirmative delegation of power 
to Congress to carry out all the principles of all these guaran- 
tees, a power not found in the Constitution. 

The last two clauses of the first section of the amendment 
disable a State from depriving not merely a citizen of the 
United States, but any person, whoever he may be, of life, 
liberty, or property without due process of law, or from deny- 
ing to him the equal protection of the laws of the State. This 
abolishes all class legislation in the States and does away with 



526 RECONSTRUCTION OF THE UNION 

the injustice of subjecting one caste of persons to a code not 
applicable to another. It prohibits the hanging of a black man 
for a crime for which the white man is not to be hanged. It 
protects the black man in his fundamental rights as a citizen 
with the same shield which it throws over the white man. . . . 
As I have already remarked, section one is a restriction upon 
the States, and does not, of itself, confer any power upon 
Congress. The power which Congress has, under this amend- 
ment, is derived, not from that section, but from the fifth 
section, which gives it authority to pass laws which are appro- 
priate to the attainment of the great object of the amendment. 
I look upon the first section, taken in connection with the 
fifth, as very important. It will, if adopted by the States, for- 
ever disable every one of them from passing laws trenching 
upon those fundamental rights and privileges which pertain to 
citizens of the United States, and to all persons who may hap- 
pen to be within their jurisdiction. 

175. The Fourteenth Amendment} 

ARTICLE XIV 

Section i. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside. No 
State shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States; nor 
shall any State deprive any person of life, liberty, or property, 
without due process of law ; nor deny to any person within its 
jurisdiction the equal protection of the laws. 

Section 2. Representatives shall be apportioned among the 
several States according to their respective numbers, counting 
the whole number of persons in each State, excluding Indians 
not taxed. But when the right to vote at any election for the 
choice of electors for President and Vice-President of the 
United States, Representatives in Congress, the executive and 

^ This amendment went into effect July 28, 1868. Revised Statutes of 
the United States (1878), 31. 



ORIGIN OF THE XIV AMENDMENT 527 

judicial ofi&cers of a State, or the members of the legislature 
thereof, is denied to any of the male inhabitants of such State, 
being twenty-one years of age, and citizens of the United States, 
or in any way abridged, except for participation in rebellion, 
or other crime, the basis of representation therein shall be 
reduced in the proportion which the number of such' male citi- 
zens shall bear to the whole number of male citizens twenty- 
one years of age in such State. 

Section 3. No person shall be a Senator or Representative 
in Congress, or elector of President and Vice-President, or hold 
any office, civil or military, under the United States or under 
any State, who, having previously taken an oath as a member 
of Congress, or as an officer of the United States, or as a mem- 
ber of any State legislature, or as an executive or judicial officer 
of any State, to support the Constitution of the United States, 
shall have engaged in insurrection or rebellion against the same, 
or given aid or comfort to the enemies thereof. But Congress 
may, by a vote of two- thirds of each house, remove such dis- 
ability. 

Section 4. The validity of the public debt of the United 
States, authorized by law, including debts incurred for pay- 
ment of pensions and bounties for services in suppressing in- 
surrection or rebellion, shall not be questioned. But neither 
the United States nor any State shall assume or pay any debt 
or obligation incurred in aid of insurrection or rebellion against 
the United States, or any claim for the loss or emancipation 
of any slave; but all such debts, obligations, and claims shall 
be held illegal and void. 

Section 5. The Congress shall have power to enforce, by 
appropriate legislation, the provisions of this article. 



CHAPTER LVII 

THEORIES AS TO THE STATUS OF THE STATES . 

As Congress put itself more directly into opposition to President John- 
son, the leaders felt the need of a theory respecting the status of the 
Southern States which should serve as a sort of fulcrum in the approach- 
ing contest. At first the radical theories of Sumner and Stevens com- 
mended themselves to the average politician as little as the presidential 
theory. In the effort to find safe middle ground, the Joint Committee 
on Reconstruction formulated the forfeited-rights theory. In the case of 
Texas v. White, the Supreme Court practically adopted the congressional 
doctrine. 

176. The State-Suicide Theory of Charles Sumner} 

... It is true, beyond question, that the Acts of Secession 
are all inoperative and void against the Constitution of the 
United States. Though matured in successive conventions, 
sanctioned in various forms, and maintained ever since by 
bloody war, these acts — no matter by what name they may 
be called — are all equally impotent to withdraw an acre of 
territory or a single inhabitant from the rightful jurisdiction 
of the United States. But while thus impotent against the 
United States, it does not follow that they were equally impo- 
tent in the work of self-destruction. Clearly, the Rebels, by 
utmost efforts, could not impair the National jurisdiction; but 
it remains to be seen if their enmity did not act back with 
fatal rebound upon those very State Rights in behalf of which 
they commenced their treason. ... 

... On this important question I discard all theory, 
whether it be of State suicide or State forfeiture or State abdi- 
cation, on the one side, or of State rights, immortal and unim- 
peachable, on the other side. ... It is enough, that, for the 
time being, and in the absence of a loyal government, they can 
take no part and perform no function in the Union, so that they 
cannot be recognized by the National Government. The reason is 
^ Atlantic Monthly, October, 1863, xii, 518-26 passim. 



THEORIES AS TO STATUS OF STATES 529 

plain. There are in these States no local functionaries bound 
by constitutional oaths, so that, in fact, there are no constitu- 
tional functionaries; and since the State government is neces- 
sarily composed of such functionaries, there can be no State 
government. . . . Therefore to all pretensions in behalf of 
State governments in the Rebel States I oppose the simple 
FACT, that for the time being no such governments exist. 
The broad spaces once occupied by those governments are 
now abandoned and vacated. . . . 

. . . It is enough that the Rebel States be declared vacated, 
as in fact they are, by all local government which we are bound 
to recognize, so that the way is open to the exercise of a right- 
ful jurisdiction. 

And here the question occurs, How shall this rightful juris- 
diction be established in the vacated States? Some there are, 
so impassioned for State rights, and so anxious for forms even 
at the expense of substance, that they insist upon the instant 
restoration of the old State governments in all their parts, 
through the agency of loyal citizens, who meanwhile must be 
protected in this work of restoration. But, assuming that all 
this is practicable, as it clearly is not, it attributes to the loyal 
citizens of a Rebel State, however few in numbers, — it may 
be an insignificant minority, — a power clearly inconsistent 
with the received principle of popular government, that the 
majority must rule. . . . 

. . . The new governments can all be organized by Con- 
gress, which is the natural guardian of people without any 
immediate government, and within the jurisdiction of the 
Constitution of the United States. Indeed, with the State 
governments already vacated by rebelKon, the Constitution 
becomes, for the time, the supreme and only law, binding alike 
on President and Congress, so that neither can establish any 
law or institution incompatible with it. And the whole Rebel 
region, deprived of all local government, lapses under the 
exclusive jurisdiction of Congress, precisely as any other 
territory; or, in other words, the lifting of the local govern- 
ments leaves the whole vast region without any other govern- 



530 RECONSTRUCTION OF THE UNION 

ment than Congress, unless the President should undertake to 
govern it by military power. . . . 

If we look at the origin of this power in Congress, we shall 
find that it comes from three distinct fountains, any one of 
which is ample to supply it. . . . 

First. From the necessity of the case, ex necessitate rei, Con- 
gress must have jurisdiction over every portion of the United 
States where there is no other government; and since in the 
present case there is no other government, the whole region 
falls within the jurisdiction of Congress. This jurisdiction . . . 
can be questioned only in the name of the local government; 
but since this government has disappeared in the Rebel States, 
the jurisdiction of Congress is uninterrupted there. The whole 
broad Rebel region is tabula rasa, or "a clean slate," where 
Congress, under the Constitution of the United States, may 
write the laws. . . . 

Secondly. This jurisdiction may also be derived from the 
Rights of War, which surely are not less abundant for Congress 
than for the President. ... It is Congress that conquers; 
and the same authority that conquers must govern. . . . 

Thirdly. But there is another source for this jurisdiction 
which is common alike to Congress and the President. It will 
be found in the constitutional provision, that "the United 
States shall guarantee to every State in this Union a republican 
form of government, and shall protect each of them against 
invasion." . . . 

. . . When a State fails to maintain a republican govern- 
ment with officers sworn according to the requirements of the 
Constitution, it ceases to be a constitutional State. The very 
case contemplated by the Constitution has arrived, and the 
National Government is invested with plenary powers, 
whether of peace or war. ... 

177. The Conquer ed-Province Theory of Thaddeus Stevens.^ 

The President assumes, what no one doubts, that the late 
rebel States have lost their constitutional relations to the 
^ December 18, 1865. Congressional Globe, 39 Cong., i Sess., 72. 



THEORIES AS TO STATUS OF STATES 531 

Union, and are incapable of representation in Congress, except 
by permission of the Government. It matters but little, with 
this admission, whether you call them States out of the Union, 
and now conquered territories, or assert that because the Con- 
stitution forbids them to do what they did do, that they are 
therefore only dead as to all national and political action, and 
will remain so until the Government shall breathe into them 
the breath of life anew and permit them to occupy their former 
position. In other words, that they are not out of the Union, 
but are only dead carcasses lying within the Union. In either 
case, it is very plain that it requires the action of Congress to 
enable them to form a State government and send representa- 
tives to Congress. Nobody, I beheve, pretends that with their 
old constitutions and frames of government they can be per- 
mitted to claim their old rights under the Constitution. They 
have torn their constitutional States into atoms, and built on 
their foundations fabrics of a totally different character. Dead 
men cannot raise themselves. Dead States cannot restore their 
existence "as it was." Whose especial duty is it to do it? In 
whom does the Constitution place the power? Not in the Judi- 
cial branch of Government, for it only adjudicates and does not 
prescribe laws. Not in the Executive, for he only executes and 
cannot make laws. Not in the Commander-in-Chief of the 
armies, for he can only hold them under military rule until the 
sovereign legislative power of the conqueror shall give them 
law. Unless the law of nations is a dead letter, the late war 
between two acknowledged belligerents severed their original 
compacts and broke all the ties that bound them together. The 
future condition of the conquered power depends on the will 
of the conqueror. They must come in as new states or remain 
as conquered provinces. Congress ... is the only power that 
can act in the matter. . . . 



532 RECONSTRUCTION OF THE UNION 

178. The Doctrine of Forfeited Rights} 

At the close of the rebellion, therefore, the people of the 
rebelHous States were found, as the President expresses it, 
"deprived of all civil government." 

Under this state of affairs it was plainly the duty of the 
President to enforce existing national laws, and to establish, 
as far as he could, such a system of goverimient as might be 
provided for by existing national statutes. As commander-in- 
chief of a victorious army, it was his duty, under the law of 
nations and the army regulations, to restore order, to preserve 
property, and to protect the people against violence from any 
quarter until provision should be made by law for their gov- 
ernment. He might, as President, assemble Congress and sub- 
mit the whole matter to the law-making power; or he might 
continue military supervision and control until Congress 
should assemble on its regular appointed day. Selecting the 
latter alternative, he proceeded, by virtue of his power as 
commander-in-chief, to appoint provisional governors over the 
revolted States. . . . But it was not for him to decide upon 
the nature or effect of any system of government which the 
people of these States might see fit to adopt. This power is 
lodged by the Constitution in the Coftgress of the United 
States, that branch of the government in which is vested the 
authority to fix the political relations of the States to the 
Union, whose duty it is to guarantee to each State a republican 
form of government, and to protect each and all of them against 
foreign or domestic violence, and against each other. We 
cannot, therefore, regard the various acts of the President in 
relation to the formation of local governments in the insurrec- 
tionary States, and the conditions imposed by him upon their 
action, in any other light than as intimations to the people that, 
as commander-in-chief of the army, he would consent to with- 
draw military rule just in proportion as they should, by their 
acts, manifest a disposition to preserve order among themselves, 

^ Report of the Joint Committee on Reconstruction, June 18, 1866, vni- 
xu passim. 



THEORIES AS TO STATUS OF STATES 533 

establish governments denoting loyalty to the Union, and 
exhibit a settled determination to return to their allegiance, 
leaving with the law-making power to fix the terms of their 
final restoration to all their rights and privileges as States of 
the Union. ... 

A claim for the immediate admission of senators and repre- 
sentatives from the so-called Confederate States has been 
urged, which seems to your committee not to be founded either 
in reason or in law, and which cannot be passed without com- 
ment. Stated in a few words, it amounts to this: That inas- 
much as the lately insurgent States had no legal right to sepa- 
rate themselves from the Union, they still retain their positions 
as States, and consequently the people thereof have a right to 
immediate representation in Congress without the imposition 
of any conditions whatever ; and further, that until such admis- 
sion Congress has no right to tax them for the support of the 
government. It has even been contended that until such 
admission all legislation affecting their interests is, if not 
unconstitutional, at least unjustifiable and oppressive. 

It is believed by your committee that all these propositions 
are not only wholly untenable, but, if admitted, would tend 
to the destruction of the government. 

It must not be forgotten that the people of these States, 
without justification or excuse, rose in insurrection against the 
United States. «• They deliberately abolished their State gov- 
ernments so far as the same connected them politically with 
the Union as members thereof under the Constitution. They 
deliberately renounced their allegiance to the federal govern- 
ment, and proceeded to estabhsh an independent government 
for themselves. . . . 

Whether legally and constitutionally or not, they did, in 
fact, withdraw from the Union and made themselves subjects 
of another government of their own creation. And they only 
yielded when, after a long, bloody, and wasting v/ar, they were 
compelled by utter exhaustion to lay down their arms ; and this 
they did, not willingly, but declaring that they yielded because 
they could no longer resist, affording no evidence whatever of 



534 RECONSTRUCTION OF THE UNION 

repentance for their crime, and expressing no regret, except that 
they had no longer the power to continue the desperate struggle. 

It cannot, we think, be denied by any one, having a tolerable 
acquaintance with pubHc law, that the war thus waged was 
a civil war of the greatest magnitude. The people waging it 
were necessarily subject to all the rules which, by the law of 
nations, control a contest of that character, and to all the 
legitimate consequences following it. One of those conse- 
quences was that, within the limits prescribed by humanity, 
the conquered rebels were at the mercy of the conquerors. . . . 

Your committee do not deem it either necessary or proper 
to discuss the question whether the late Confederate States are 
still States of this Union, or can ever be otherwise. Granting 
this profitless abstraction about which so many words have 
been wasted, it by no means follows that the people of those 
States may not place themselves in a condition to abrogate the 
powers and privileges incident to a State of the Union, and 
deprive themselves of all pretence of right to exercise those 
powers and enjoy those privileges. A State within the Union 
has obligations to discharge as a member of the Union. It must 
submit to federal laws and uphold federal authority. It must 
have a government republican in form, under and by which 
it is connected with the general government, and through 
which it can discharge its obligations. It is more than idle, 
it is mockery, to contend that a people who have thrown off 
their allegiance, destroyed the local government which bound 
their States to the Union as members thereof, defied its author- 
ity, refused to execute its laws, and abrogated every provision 
which gave them political rights within the Union, still retain, 
through all, the perfect and entire right to resume, at their 
own will and pleasure, all their privileges within the Union, 
and especially to participate in its government, and to control 
the conduct of its affairs. To admit such a principle for one 
moment would be to declare that treason is always master and 
loyalty a blunder. Such a principle is void by its very nature 
and essence, because inconsistent with the theory of govern- 
ment, and fatal to its very existence. 



THEORIES AS TO STATUS OF STATES 535 

On the contrary, we assert that no portion of the people of 
this country, whether in State or Territory, have the right, 
while remaining on its soil, to withdraw from or reject the 
authority of the United States. They must obey its laws as 
paramount, and acknowledge its jurisdiction. They have no 
right to secede ; and while they can destroy their State govern- 
ments, and place themselves beyond the pale of the Union, so 
far as the exercise of State privileges is concerned, they cannot 
escape the obligations imposed upon them by the Constitution, 
and the laws, nor impair the exercise of national authority. 
The Constitution, it will be observed, does not act upon States, 
as such, but upon the people; while, therefore, the people can- 
not escape its authority, the States may, through the act of 
their people, cease to exist in an organized form, and thus dis- 
solve their political relations with the United States. . . . 

179. The Supreme Court on the Status of the States} 

... A State, in the ordinary sense of the Constitution, is a 
political community of free citizens, occupying a territory of 
defined boundaries, and organized under a government sanc- 
tioned and limited by a written constitution, and established 
by the consent of the governed. . . . 

In all respects, so far as the objects could be accomplished 
by ordinances of the convention, by acts of the legislature, and 
by votes of the citizens, the relations of Texas to the Union 
were broken up, and new relations to a new government were 
established for them. . . , 

Did Texas, in consequence of these acts, cease to be a State? 
Or, if not, did the State cease to be a member of the Union? 

It is needless to discuss, at length, the question whether the 
right of a State to withdraw from the Union for any cause, 
regarded by herself as sufficient, is consistent with the Constitu- 
tion of the United States. 

The Union of the States never was a purely artificial and 
arbitrary relation. It began among the Colonies, and grew out 
of common origin, mutual sympathies, kindred principles, 
^ Texas v. White, 1868. 7 Wallace, 700. 



536 RECONSTRUCTION OF 'THE UNION 

similar interests, and geographical relations. It was confirmed 
and strengthened by the necessities of war, and received de- 
finite form, and character, and sanction from the Articles of 
Confederation. By these the Union was solemnly declared to 
"be perpetual." And when these Articles were found to be 
inadequate to the exigencies of the country, the Constitution 
was ordained "to form a more perfect Union." It is difficult to 
convey the idea of indissoluble unity more clearly than by 
these words. What can be indissoluble if a perpetual Union, 
made more perfect, is not? 

But the perpetuity and indissolubility of the Union, by no 
means implies the loss of distinct and individual existence, or 
of the right of self-government by the States. . . . 

. . . Not only therefore can there be no loss of separate and 
independent autonomy to the States, through their union and 
under the Constitution, but it may be not unreasonably said that 
the preservation of the States, and the maintenance of their gov- 
ernments, are as much within the design and care of the Con- 
stitution as the preservation of the Union and the maintenance 
of the National government. The Constitution, in all of its pro- 
visions, looks to an indestructible Union, composed of inde- 
structible States. . . . 

Considered therefore as transacted under the Constitution, 
the ordinance of secession, adopted by the convention and rati- 
fied by a majority of the citizens of Texas, and all the acts of 
her legislature intended to give effect to that ordinance, were 
absolutely null. They were utterly without operation in law. 
The obligations of the State, as a member of the Union, and of 
every citizen of the State, as a citizen of the United States, 
remained perfect and unimpaired. It certainly follows that 
the State did not cease to be a State, nor her citizens to be citi- 
zens of the Union. . . . 

And it is by no means a logical conclusion, from the premises 
which we have endeavored to establish, that the governmental 
relations of Texas to the Union remained unaltered. Obliga- 
tions often remain unimpaired, while relations are greatly 
changed. The obKgations of allegiance to the State, and of 



THEORIES AS TO STATUS OF STATES 537 

obedience to her laws, subject to the Constitution of the 
United States, are binding upon all citizens, whether faithful 
or unfaithful to them ; but the relations which subsist while 
these obligations are performed, are essentially different from 
those which arise when they are disregarded and set at nought. 
And the same must necessarily be true of the obligations and 
relations of States and citizens to the Union. No one has been 
bold enough to contend that, while Texas was controlled by 
a government hostile to the United States, and in affiliation 
with a hostile confederation, waging war upon the United 
States, senators chosen by her legislature, or representatives 
elected by her citizens, were entitled to seats in Congress ; or 
that any suit, instituted in her name, could be entertained in 
this court. All admit that, during this condition of civil war, 
the rights of the State as a member, and of her people as citi- 
zens of the Union, were suspended. The government and the 
citizens of the State, refusing to recognize their constitu- 
tional obligations, assumed the character of enemies, and 
incurred the consequences of rebellion. ... 



CHAPTER LVIII 

CONGRESSIONAL RECONSTRUCTION 

The policy of the radical leaders who dominated Congress after the 
elections of 1866 has been well characterized as "thorough." Their pur- 
poses were to assert effectively the control of Congress over the President, 
and, disregarding the governments which he had recognized, to reorganize 
the Southern States on the basis of negro suffrage. The first object was 
attained by the Tenure of Office Act and by the provision in the Appro- 
priation Act which forbade the President to issue military orders except 
through the general of the army. The other purpose was accomplished 
by the three Reconstruction Acts of March 2, March 23, and July 17. 
All were passed over the President's veto. The broad constitutional 
grounds upon which the President based his opposition are stated in the 
following passages from his messages. 

180. Veto Message of March 2, i86y} 

The bill places all the people of the ten States therein named 
under the absolute domination of military rulers; and the 
preamble undertakes to give the reason upon which the 
measure is based and the ground upon vt^hich it is justified. It 
declares that there exists in those States no legal governments 
and no adequate protection for life or property, and asserts 
the necessity of enforcing peace and good order within their 
limits. . . . 

The bill, however, would seem to show upon its face that 
the establishment of peace and good order is not its real object. 
The fifth section declares that the preceding sections shall 
cease to operate in any State where certain events shall have 
happened. These events are, first, the selection of delegates to 
a State convention by an election at which negroes shall be 
allowed to vote; second, the formation of a State constitution 
by the convention so chosen; third, the insertion into the State 
constitution of a provision which will secure the right of voting 
at all elections to negroes and to such white men as may not 

^ Richardson, Me^^oge^ and Papers ojthe Presidents, vi, 498-507 passim. 



CONGRESSIONAL RECONSTRUCTION 539 

be disfranchised for rebellion or felony; fourth, the submission 
of the constitution for ratification to negroes and white men 
not disfranchised, and its actual ratification by their vote; 
fifth, the submission of the State constitution to Congress for 
examination and approval, and the actual approval of it by 
that body; sixth, the adoption of a certain amendment to the 
Federal Constitution by a vote of the legislature elected under 
the new constitution; seventh, the adoption of said amendment 
by a sufficient number of other States to make it a part of the 
Constitution of the United States. All these conditions must 
be fulfilled before the people of any of these States can be 
relieved from the bondage of military domination; but when 
they are fulfilled, then immediately the pains and penalties 
of the bill are to cease, no matter whether there be peace and 
order or not, and without any reference to the security of fife 
or property. The excuse given for the bill in the preamble is 
admitted by the bill itself not to be real. The military rule 
which it establishes is plainly to be used, not for any purpose 
of order or for the prevention of crime, but solely as a means 
of coercing the people into the adoption of principles and 
measures to which it is known that they are opposed, and upon 
which they have an undeniable right to exercise their own 
judgment. . . . 

. . . Have we the power to establish and carry into execu- 
tion a measure like this? I answer. Certainly not, if we derive 
our authority from the Constitution and if we are bound by the 
limitations which it imposes. 

This proposition is perfectly clear, that no branch of the 
Federal Government — executive, legislative, or judicial — 
can have any just powers except those which it derives through 
and exercises under the organic law of the Union. Outside of 
'the Constitution we have no legal authority more than private 
citizens, and within it we have only so much as that instrument 
gives us. This broad principle limits all our functions and ap- 
pHes to all subjects. It protects not only the citizens of States 
which are within the Union, but it shields every human being 
who comes or is brought under our jurisdiction. We have no 



540 RECONSTRUCTION OF THE UNION 

right to do in one place more than in another that which the 
Constitution says we shall not do at all. If, therefore, the 
Southern States were in truth out of the Union, we could not 
treat their people in a way which the fundamental law forbids. 

Some persons assume that the success of our arms in crush- 
ing the opposition which was made in some of the States to 
the execution of the Federal laws reduced those States and all 
their people — the innocent as well as the guilty — to the con- 
dition of vassalage and gave us a power over them which the 
Constitution does not bestow or define or limit. No fallacy 
can be more transparent than this. Our victories subjected 
the insurgents to legal obedience, not to the yoke of an arbi- 
trary despotism. When an absolute sovereign reduces his 
rebellious subjects, he may deal with them according to his 
pleasure, because he had that power before. But when a lim- 
ited monarch puts down an insurrection, he must still govern 
according to law. . . . 

This is a bill passed by Congress in time of peace. There is 
not in any one of the States brought under its operation either 
war or insurrection. The laws of the States and of the Federal 
Government are all in undisturbed and harmonious operation. 
The courts, State and Federal, are open and in the full exercise 
of their proper authority. Over every State comprised in these 
five mihtary districts, life, liberty, and property are secured 
by State laws and Federal laws, and the National Constitu- 
tion is everywhere in force and everywhere obeyed. What, 
then, is the ground on which this bill proceeds? The title of the 
bill announces that it is intended ''for the more efficient gov- 
ernment" of these ten States. It is recited by way of preamble 
that no legal State governments "nor adequate protection for 
life or property" exist in those States, and that peace and good 
order should be thus enforced. The first thing which arrests 
attention upon these recitals, which prepare the way for 
martial law, is this, that the only foundation upon which 
martial law can exist under our form of government is not 
stated or so much as pretended. Actual war, foreign invasion, 
domestic insurrection — none of these appear ; and none of 



CONGRESSIONAL RECONSTRUCTION 541 

these, in fact, exist. It is not even recited that any sort of war 
or insurrection is threatened. Let us pause here to consider, 
upon this question of constitutional law and the power of 
Congress, a recent decision of the Supreme Court of the United 
States in ex parte MilHgan. ... 

The purpose and object of the bill — the general intent 
which pervades it from beginning to end — is to change the 
entire structure and character of the State governments and to 
compel them by force to the adoption of organic laws and regu- 
lations which they are unwilHng to accept if left to themselves. 
The negroes have not asked for the privilege of voting; the vast 
majority of them have no idea what it means. This bill not only 
thrusts it into their hands, but compels them, as well as the 
whites, to use it in a particular way. If they do not form a con- 
stitution with prescribed articles in it and afterwards elect a 
legislature which will act upon certain measures in a prescribed 
way, neither blacks nor whites can be reheved from the slavery 
which the bill imposes upon them. Without pausing here to 
consider the policy or impoHcy of Africanizing the southern 
part of our territory, I would simply ask the attention of Con- 
gress to that manifest, well-known, and universally acknow- 
ledged rule of constitutional law which declares that the Federal 
Government has no jurisdiction, authority, or power to regu- 
late such subjects for any State. To force the right of suffrage 
out of the hands of the white people and into the hands of the 
negroes is an arbitrary violation of this principle. . . . 

181. Veto Message of March 2j, 186'/ } 

This bill provides for elections in the ten States brought 
under the operation of the original act to which it is supple- 
mentary. Its details are principally directed to the elections 
for the formation of the State constitutions, but by the sixth 
section of the bill "all elections" in these States occurring 
while the original act remains in force are brought within its 
purview. . . . 
. . . No consideration could induce me to give my approval 

^ Richardson, Messages and Papers of the Presidents, vi, 531-34 passim. 



542 RECONSTRUCTION OF THE UNION 

to such an election law for any purpose, and especially for the 
great puipose of framing the constitution of a State. If ever the 
American citizen should be left to the free exercise of his own 
judgment it is when he is engaged in the work, of forming the 
fundamental law under which he is to live. That work is his 
work, and it can not properly be taken out of his hands. All 
this legislation proceeds upon the contrary assumption that the 
people of each of these States shall have no constitution except 
such as may be arbitrarily dictated by Congress and formed 
under the restraint of military rule. A plain statement of facts 
makes this evident. 

In all these States there are existing constitutions, framed in 
the accustomed way by the people. Congress, however, de- 
clares that these constitutions are not "loyal and republican," 
and requires the people to form them anew. What, then, in the 
opinion of Congress, is necessary to make the constitution of a 
State "loyal and republican"? The original act answers the 
question : It is universal negro suffrage — a question which the 
Federal Constitution leaves exclusively to the States them- 
selves. All this legislative machinery of martial law, military 
coercion, and political disfranchisement is avowedly for that 
purpose and none other. The existing constitutions of the ten 
States conform to the acknowledged standards of loyalty and 
republicanism. Indeed, if there are degrees in repubKcan forms 
of government, their constitutions are more republican now 
than when these States, four of which were members of the 
original thirteen, first became members of the Union. 

Congress does not now demand that a single provision of 
their constitution be changed except such as confine suffrage to 
the white population. It is apparent, therefore, that these pro- 
visions do not conform to the standard of republicanism which 
Congress seeks to establish. That there may be no mistake, it 
is only necessary that reference should be made to the original 
act, which declares "such constitution shall provide that the 
elective franchise shall be enjoyed by all such persons as have 
the qualifications herein stated for electors of delegates." What 
class of persons is here meant clearly appears in the same sec- 



CONGRESSIONAL RECONSTRUCTION 543 

tion; that is to say, ''the male citizens of said State 21 years old 
and upward, of whatever race, color, or previous condition, 
who have been resident in said State for one year previous to 
the day of such election." 

Without these provisions no constitution which can be 
framed in any one of the ten States will be of any avail with 
Congress. This, then, is the test of what the constitution of a 
State of this Union must contain to make it republican. Meas- 
ured by such a standard, how few of the States now composing 
the Union have repubhcan constitutions ! If in the exercise of 
the constitutional guaranty that Congress shall secure to every 
State a republican form of govermnent universal suffrage for 
blacks as well as whites is a sine qua non, the work of recon- 
struction may as well begin in Ohio as in Virginia, in Pennsyl- 
vania as in North Carolina. . . . 

182. Veto Message of July ig, iSdy} 

The veto of the original bill of the 2d of March was based on 
two distinct grounds — the interference of Congress in matters 
strictly appertaining to the reserved powers of the States and 
the establishment of military tribunals for the trial of citizens 
in time of peace. The impartial reader of that message will 
understand that all that it contains with respect to military 
despotism and martial law has reference especially to the fear- 
ful power conferred on the district commanders to displace the 
criminal courts and assume jurisdiction to try and to punish by 
military boards ; that, potentially, the suspension of the habeas 
corpus was martial law and military despotism. The act now 
before me not only declares that the intent was to confer such 
military authority, but also to confer unlimited military au- 
thority over all the other courts of the State and over all the 
officers of the State — legislative, executive, and judicial. Not 
content with the general grant of power, Congress, in the sec- 
ond section of this bill, specifically gives to each military com- 
mander the power ''to suspend or remove from office, or from 
the performance of official duties and the exercise of official 

^ Richardson, Messages and Papers of the Presidents, vi, 537-44 passim. 



544 RECONSTRUCTION OF THE UNION 

powers, any officer or person holding or exercising, or professing 
to hold or exercise, any civil or military office or duty in such 
district under any power, election, appointment, or authority 
derived from, or granted by, or claimed under any so-called 
State, or the government thereof, or any municipal or other 
division thereof." 

A power that hitherto all the departments of the Federal 
Government, acting in concert or separately, have not dared to 
exercise is here attempted to be conferred on a subordinate 
military officer. To him, as a military officer of the Federal 
Government, is given the power, supported by "a sufficient 
military force," to remove every civil officer of the State. What 
next ? The district commander, who has thus displaced the civil 
officer, is authorized to ffil the vacancy by the detail of an 
officer or soldier of the Army, or by the appointment of "some 
other person." . . . 

The clear intent of this section is that the officer or soldier 
detailed to fill a civil office must execute its duties according to 
the laws of the State. ... 

A singular contradiction is apparent here. Congress declares 
these local State governments to be illegal governments, and 
then provides that these illegal governments shall be carried on 
by Federal officers, who are to perform the very duties imposed 
on its own officers by this illegal State authority. It certainly 
would be a novel spectacle if Congress should attempt to carry 
on a legal State government by the agency of its own officers. 
It is yet more strange that Congress attempts to sustain and 
carry on an illegal State government by the same Federal 
agency. . . . 

This bill and the acts to which it is supplementary are all 
founded upon the assumption that these ten communities are 
not States and that their existing governments are not legal. 
Throughout the legislation upon this subject they are called 
"rebel States," and in this particular bill they are denominated 
"so-called States," and the vice of illegality is declared to 
pervade all of them. The obligations of consistency bind a 
legislative body as well as the individuals who compose it. It 



CONGRESSIONAL RECONSTRUCTION 545 

is now too late to say that these ten political communities are 
not States of the Union. Declarations to the contrary made in 
these three acts are contradicted again and again by repeated 
acts of legislation enacted by Congress from the year 1861 to 
the year 1867. 

During that period, while these States were in actual rebel- 
lion, and after that rebellion was brought to a close, they have 
been again and again recognized as States of the Union. Re- 
presentation has been apportioned to them as States. They have 
been divided into judicial districts for the holding of district 
and circuit courts of the United States, as States of the Union 
only can be districted. The last act on this subject was passed 
July 23, 1866, by which every one of these ten States was 
arranged into districts and circuits. 

They have been called upon by Congress to act through their 
legislatures upon at least two amendments to the Constitution 
of the United States. As States they have ratified one amend- 
ment, which required the vote of twenty-seven States of the 
thirty-six then composing the Union. When the requisite 
twenty-seven votes were given in favor of that amendment — 
seven of which votes were given by seven of these ten States — 
it was proclaimed to be a part of the Constitution of the United 
States, and slavery was declared no longer to exist within the 
United States or any place subject to their jurisdiction. If 
these seven States were not legal States of the Union, it follows 
as an inevitable consequence that in some of the States slavery 
yet exists. It does not exist in these seven States, for they have 
abolished it also in their State constitutions; but Kentucky not 
having done so, it would still remain in that State. But, in 
truth, if this assumption that these States have no legal State 
governments be true, then the abolition of slavery by these 
illegal governments binds no one, for Congress now denies to 
these States the power to abolish slavery by denying to them 
the power to elect a legal State legislature, or to frame a con- 
stitution for any purpose, even for such a purpose as the 
abolition of slavery. . . . 

So much for continuous legislative recognition. The in- 



546 RECONSTRUCTION OF THE UNION 

stances cited, however, fall far short of all that might be enum- 
erated. Executive recognition, as is well known, has been 
frequent and unwavering. The same may be said as to jadicial 
recognition through the Supreme Court of the United States. 
That august tribunal, from first to last, in the administration 
of its duties in banc and upon the circuit, has never failed 
to recognize these ten communities as legal States of the 
Union. ... 

Within a period less than a year the legislation of Congress 
has attempted to strip the executive department of the Gov- 
ernment of some of its essential powers. The Constitution and 
the oath provided in it devolve upon the President the power 
and duty to see that the laws are faithfully executed. The Con- 
stitution, in order to carry out this power, gives him the choice 
of the agents, and makes them subject to his control and super- 
vision. But in the execution of these laws the constitutional 
obligation upon the President remains, but the power to exer- 
cise that constitutional duty is effectually taken away. The 
military commander is as to the power of appointment made to 
take the place of the President, and the General of the Army 
the place of the Senate; and any attempt on the part of the 
President to assert his own constitutional power may, under 
pretense of law, be met by official insubordination. It is to be 
feared that these military officers, looking to the authority 
given by these laws rather than to the letter of the Constitu- 
tion, will recognize no authority but the commander of the 
district and the General of the Army. 

If there were no other objection than this to this proposed 
legislation, it would be sufficient. Whilst I hold the chief 
executive authority of the United States, whilst the obligation 
rests upon me to see that all the laws are faithfully executed, 
I can never willingly surrender that trust or the powers given 
for its execution. . . . 



CHAPTER LIX 

THE SUPREME COURT AND RECONSTRUCTION 

During actual reconstruction, the Supreme Court showed great reluct- 
ance to take sides in the pohtical controversy. It was even accused of 
welcoming technicalities to avoid passing upon the constitutionality of 
congressional reconstruction. In the case of Mississippi v. Johnson, the 
Court refused to express an opinion on the work of the radicals, confining 
itself strictly to the question whether it could restrain the President by 
injunction from carrying out any act of Congress. In the case of Texas v. 
White, decided in 1868, the Supreme Court took a more positive attitude 
toward the issues which had convulsed the country. While the Court did 
not pronounce directly upon the constitutionality of the Reconstruction 
Acts, it did in general justify the course of congressional action. Extracts 
from the first part of the decision have already been given [No. 179]. 

183. State of Mississippi v. Andrew Johnson, President.^ 

The Chief Justice delivered the opinion of the Court: 

A motion was made, some days since, in behalf of the State of 
Mississippi, for leave to file a bill in the name of the State, 
praying this court to perpetually enjoin and restrain Andrew 
Johnson, President of the United States, and E. O. C. Ord, gen- 
eral commanding in the District of Mississippi and Arkansas, 
from executing, or in any manner carrying out, certain acts of 
Congress therein named. 

The acts referred to are those of March 2d, and March 23d, 
1867, commonly known as the Reconstruction Acts. 

The Attorney- General objected to the leave asked for, upon 
the ground that no bill which makes a President a defendant, 
and seeks an injunction against him to restrain the performance 
of his duties as President, should be allowed to be filed in this 
court. 

This point has been fully argued, and we will now dispose of 
it. 

We shall limit our inquiry to the question presented by the 
objection, without expressing any opinion on the broader issues 
^ Supreme Court of the United States, 1867. 4 Wallace, 475. 



548 RECONSTRUCTION OF THE UNION 

discussed in argument, whether, in any case, the President of 
the United States may be required, by the process of this court, 
to perform a purely ministerial act under a positive law, or may 
be held amenable, in any case, otherwise than by impeachment 
for crime. 

The single point which requires consideration is this: Can the 
President be restrained by injunction from carrying into effect 
an act of Congress alleged to be unconstitutional? 

It is assumed by the counsel for the State of Mississippi, 
that the President, in the execution of the Reconstruction Acts, 
is required to perform a mere ministerial duty. In this assump- 
tion there is, we think, a confounding of the terms ministerial 
and executive, which are by no means equivalent in import. 

A ministerial duty, the performance of which may, in proper 
cases, be required of the head of a department, by judicial 
process, is one in respect to which nothing is left to discretion. 
It is a simple, definite duty, arising under conditions admitted 
or proved to exist, and imposed by law. . . . 

Very different is the duty of the President in the exercise of 
the power to see that the laws are faithfully executed, and 
among these laws the acts named in the bill. By the first of 
these acts he is required to assign generals to command in the 
several military districts, and to detail sufficient military force 
to enable such officers to discharge their duties under the law. 
By the supplementary acts, other duties are imposed on the 
several commanding generals, and these duties must necessarily 
be performed under the supervision of the President as com- 
mander-in-chief. The duty thus imposed on the President is in 
no just sense ministerial. It is purely executive and political. 

An attempt on the part of the judicial department of the gov- 
ernment to enforce the performance of such duties by the Presi- 
dent might be justly characterized, in the language of Chief 
Justice Marshall, as "an absurd and excessive extravagance." 

It is true that in the instance before us the interposition of 
the court is not sought to enforce action by the Executive 
under constitutional legislation, but to restrain such action 
under legislation alleged to be unconstitutional. But we are 



JUDICIARY AND RECONSTRUCTION 549 

unable to perceive that this circumstance takes the case out 
of the general principles which forbid judicial interference with 
the exercise of Executive discretion. 

It was admitted in the argument that the application now 
made to us is without a precedent ; and this is of much weight 
against it. 

Had it been supposed at the bar that this court wo aid, in any 
case, interpose, by injunction, to prevent the execution of an 
unconstitutional act of Congress, it can hardly be doubted 
that applications with that object would have been heretofore 
addressed to it. 

Occasions have not been wanting. 

The constitutionahty of the act for the annexation of Texas 
was vehemently denied. It made important and permanent 
changes in the relative importance of States and sections, and 
was by many supposed to be pregnant with disastrous results 
to large interests in particular States. But no one seems to 
have thought of an appHcation for an injunction against the 
execution of the act by the President. 

And yet it is difl&cult to perceive upon what principle the 
apphcation now before us can be allowed and similar applica- 
tions in that and other cases have been denied. 

The fact that no such apphcation was ever before made in 
any case indicates the general judgment of the profession that 
no such application should be entertained. 

It will hardly be contended that Congress [the courts ?] can 
interpose, in any case, to restrain the enactment of an uncon- 
stitutional law ; and yet how can the right to judicial interposi- 
tion to prevent such an enactment, when the purpose is evident 
and the execution of that purpose certain, be distinguished, in 
principle, from the right to such interposition against the execu- 
tion of such a law by the President ? 

The Congress is the legislative department of the govern- 
ment; the President is the executive department. Neither can 
be restrained in its action by the judicial department; though 
the acts of both, when performed, are, in proper cases, subject 
to its cognizance. 



550 RECONSTRUCTION OF THE UNION 

The impropriety of such interference will be clearly seen 
upon consideration of its possible consequences. 

Suppose the bill filed and the injunction prayed for allowed. 
If the President refuse obedience, it is needless to observe that 
the court is without power to enforce its process. If, on the 
other hand, the President complies with the order of the court 
and refuses to execute the acts of Congress, is it not clear that 
a collision may occur between the executive and legislative 
departments of the government? May not the House of 
Representatives impeach the President for such refusal ? And 
in that case could this court interfere, in behalf of the Presi- 
dent, thus endangered by compHance with its mandate, and 
restrain by injunction the Senate of the United States from 
sitting as a court of impeachment ? Would the strange spectacle 
be offered to the public world of an attempt by this court to 
arrest proceedings in that court? 

These questions answer themselves. 

It is true that a State may file an original bill in this court. 
And it may be true, in some cases, that such a bill may be filed 
against the United States. But we are fully satisfied that this 
court has no jurisdiction of a bill to enjoin the President in the 
performance of his official duties ; and that no such bill ought to 
be received by us. . . . 

184. State of Texas y. White} 
The Chief Justice delivered the opinion of the Court: 

These new relations imposed new duties upon the United 
States. The first was that of suppressing the rebellion. The 
next was that of re-establishing the broken relations of the 
State with the Union. The first of these duties having been 
performed, the next necessarily engaged the attention of the 
National government. 

The authority for the performance of the first had been 
found in the power to suppress insurrection and carry on war ; 
for the performance of the second, authority was derived from 
^ Supreme Court of the United States, 1868. 7 Wallace, 700. 



JUDICIARY AND RECONSTRUCTION 551 

the obKgation of the United States to guarantee to every State 
in the Union a republican form of government. The latter, 
indeed, in the case of a rebellion which involves the govern- 
ment of a State, and for the time excludes the National author- 
ity from its limits, seems to be a necessary complement to the 
former. 

Of this, the case of Texas furnishes a striking illustration. 
When the war closed there was no government in the State 
except that which had been organized for the purpose of wag- 
ing war against the United States. That government immedi- 
ately disappeared. The chief functionaries left the State. 
Many of the subordinate ofhcials followed their example. 
Legal responsibilities were annulled or greatly impaired. It 
was inevitable that great confusion should prevail. If order 
was maintained, it was where the good sense and virtue of the 
citizens gave support to local acting magistrates, or supplied 
more directly the needful restraints. 

A great social change increased the difficulty of the situa- 
tion. . . . 

The new freemen necessarily became part of the people, and 
the people still constituted the State ; for States like individuals 
retain their identity, though changed to some extent in their 
constituent elements. And it was the State, thus constituted, 
which was now entitled to the benefit of the constitutional 
guarantee. . . . 

But the power to carry into effect the clause of guarantee is 
primarily a legislative power, and resides in Congress. "Under 
the fourth article of the constitution, it rests with Congress 
to decide what government is the established one in a State. 
For, as the United States guarantee to each State a republican 
government. Congress must necessarily decide what govern- 
ment is established in the State, before it can determine whether 
it is republican or not." ... 

The action of the President must, therefore, be considered as 
provisional, and, in that light, it seems to have been regarded 
by Congress. It was taken after the term of the 38th Congress 
had expired. The 39th Congress, which assembled in Decern- 



552 RECONSTRUCTION OF THE UNION 

ber, 1865, followed by the 4otk Congress, which met in March, 
1867, proceeded, after long deliberation, to adopt various 
measures for reorganization and restoration. These measures 
were embodied in proposed amendments to the constitution, 
and in the acts known as the Reconstruction Acts, which have 
been so far carried into effect, that a majority of the States 
which were engaged in the rebellion have been restored to their 
constitutional relations, under forms of government, adjudged 
to be republican by Congress, through the admission of their 
"Senators and Representatives into the councils of the Union." 

Nothing in the case before us requires the court to pronounce 
judgment upon the constitutionality of any particular provision 
of these acts. 

But it is important to observe that these acts themselves 
show that the governments, which had been established and 
had been in actual operation under executive direction, were 
recognized by Congress as provisional, as existing, and as cap- 
able of continuance. 

By the act of March 2, 1867, the first of the series, these gov- 
ernments were, indeed, pronounced illegal and were subjected 
to military control, and were declared to be provisional only; 
and by the supplementary act of July 19, 1867, the third of the 
series, it was further declared that it was the true intent and 
meaning of the act of March 2, that the governments then 
existing were not legal State governments, and if continued, 
were to be continued subject to the miUtary commanders of the 
respective districts and to the paramount authority of Congress. 
We do not inquire here into the constitutionality of this legis- 
lation so far as it relates to military authority, or to the para- 
mount authority of Congress. It suffices to say, that the terms 
of the acts necessarily imply recognition of actually existing 
governments ; and that in point of fact, the governments thus 
recognized, in some important respects, still exist. . . . 



CHAPTER LX 

THE IMPEACHMENT OF PRESIDENT JOHNSON 

The struggle between the President and Congress ciilminated in the 
adoption of articles of impeachment by the House. The real significance 
of the trial, obscured by the technical subtleties of the managers for the 
House and by the lengthy arguments of the counsel for the defense, 
appears most clearly in the opinions rendered by individual Senators. 
The essential points at issue are stated temperately by Senator Grimes. 
Senators Wilson and Fessenden represent opposing views of the nature 
of impeachable offenses. 

185. Opinion of Senator Wilson.^ 

High misdemeanors may or may not be violations of the 
laws. High misdemeanors may, in my judgment, be misbe- 
havior in office detrimental to the interests of the nation, 
dangerous to the rights of the people, or dishonoring to the 
government. I entertain the conviction that the framers of the 
Constitution intended to impose the high duty upon the House 
of Representatives to arraign the Chief Magistrate for such 
misbehavior in office as injured, dishonored, or endangered the 
nation, and to impose upon the Senate the duty of trying, con- 
victing, and removing the Chief Magistrate proved guilty of 
such misbehavior. Believing this to be the intention of the 
framers of the Constitution and its true meaning; beheving 
that the power should be exercised whenever the security of 
the country and the hberties of the people imperatively de- 
mand it; and beheving by the evidence adduced to prove the 
charges of violating the Constitution and the tenure-of-office 
act, and by the confessed and justified acts of the President, 
that he is guilty of high misdemeanors, I unhesitatingly vote 
for his conviction and removal from his high office. 

The President is charged by the House of Representatives 
with violating the Constitution and the tenure-of-office act 
in removing Mr. Stanton from the office of Secretary of War, 
^ Trial of Andrew Johnson, iii, 215-16. 



554 RECONSTRUCTION OF THE UNION 

and in appointing Adjutant General Thomas Secretary of War 
ad interim. The removal of Mr. Stanton and the appointment 
of Adjutant General Thomas, and the violation of the tenure- 
of-office act, if Mr. Stanton be within that act, stand confessed 
and justified in the answer of the President to the charges of 
the House of Representatives. The answer of the President, 
without any other evidence, is to my mind conclusive evidence 
of his guilt. Upon his answer, confessions, assumptions, and 
justifications I have no hesitation in recording my vote of 
"guilty." The assumptions of power put forth by the Presi- 
dent in his defence cannot but startle and alarm all men who 
would maintain the just powers of all branches of the govern- 
ment. Had the President inadvertently violated the Constitu- 
tion and the laws ; had he pleaded in justification misconstruc- 
tion of the Constitution and the laws, I might have hesitated 
to vote for his conviction. But he claims the right to remove 
civil officers and appoint others, ad interim, during the session 
of the Senate. If that claim of power is admitted by a vote of 
acquittal, the President can remove during the session of the 
Senate tens of thousands of civil officers with their millions of 
compensation, and appoint his own creatures to fill their 
places without the advice and consent of the Senate, and thus 
nullify that provision of the Constitution that empowers the 
Senate to give its advice and consent to appointments. 

Not content with this assumption of power, the President 
claims the right to pronounce a law of Congress unconstitu- 
tional, to refuse to execute it, although he is sworn to do so, 
and to openly violate it wdth a view of testing its constitution- 
ality in the courts, although no means may exist for months 
or years to come, to test the constitutionality of the law so 
violated in the judicial tribunals of the country. The President 
claims and has exercised the right to declare Congress an un- 
constitutional body, incapable of enacting laws or of proposing 
amendments to the Constitution; to hold the laws in abeyance; 
to refuse to execute them, and to defiantly violate them in 
order to test their constitutionality. These are the positions 
assumed by Andrew Johnson. These assumptions, if admitted, 



IMPEACHMENT OF PRESIDENT 555 

radically change the character of our government. If they are 
sustained by a verdict of acquittal, the President ceases to be 
the servant of the law, and becomes the master of the people; 
and a law-non-executing power, a law-defying power, a law- 
breaking power is created within the government. Instead of 
an executive bound to the faithful execution of the laws of 
Congress, the nation has an executive bound only to execute 
the laws according to his own caprices, whims, and sovereign 
pleasure. Never can I assent, by a vote of acquittal, to 2xecu- 
tive assumptions so unconstitutional, so subversive of the 
government, so revolutionary in their scope and tendency. 
These assumptions will introduce into our constitutional sys- 
tem, into our government of nicely adjusted parts, derange- 
ment, disorganization, and anarchy. . . . 

186. Opinion of Senator Fes senden} 

The power of impeachment is conferred by the Constitution 
in terms so general as to occasion great diversity of opinion 
with regard to the nature of offences which may be held to con- 
stitute crimes or misdemeanors within its intent and meaning. 
Some contend, and with great force of argument, both upon 
principle and authority, that only such crimes and misde- 
meanors are intended as are subject to indictment and punish- 
ment as a violation of some known law. Others contend that 
anything is a crime or misdemeanor within the meaning of the 
Constitution which the appointed judges choose to consider 
so ; and they argue that the provision was left indefinite from 
the necessity of the case, as offences of public officers, injurious 
to the public interest, and for which the offender ought to be 
removed, cannot be accurately defined beforehand; that the 
remedy provided by impeachment is of a political character, 
and designed for -the protection of the public against unfaithful 
and corrupt ofi&cials. Granting, for the sake of the argument, 
that this latter construction is the true one, it must be conceded 
that the power thus conferred might be liable to very great 
abuse, especially in times of high party excitement, when the 
^ Trial of Andrew Johnson, ni, 29-30. 



5S6 RECONSTRUCTION OF THE UNION 

passions of the people are inflamed against a perverse and 
obnoxious public of&cer. If so it is a power to be exercised with 
extreme caution, when you once get beyond the hne of specific 
criminal offences. The tenure of public offices, except those of 
judges, is so Kmited in this country, and the ability to change 
them by popular suffrage so great, that it would seem hardly 
worth while to resort to so harsh a remedy, except in extreme 
cases, and then only upon clear and unquestionable grounds. 
In the case of an elective Chief Magistrate of a great and 
powerful people, living under a written Constitution, there is 
much more at stake in such a proceeding than the fate of the 
individual. The office of President is one of the great coordi- 
nate branches of the government, having its defined powers, 
privileges, and duties ; as essential to the very framework of the 
government as any other, and to be touched with as careful a 
hand. Anything which conduces to weaken its hold upon the 
respect of the people, to break down the barriers which sur- 
round it, to make it the mere sport of temporary majorities, 
tends to the great injury of our government, and inflicts a wound 
upon constitutional liberty. It is evident, then, as it seems to 
me, that the offence for which a Chief Magistrate is removed 
from office, and the power intrusted to him by the people trans- 
ferred to other hands, and especially where the hands which 
receive it are to be the same which take it from him, should be of 
such a character as to commend itself at once to the minds of all 
right thinking men as, beyond all question, an adequate cause. 
It should be free from the taint of party ; leave no reasonable 
ground of suspicion upon the motives of those who inflict the 
penalty, and address itself to the country and the civilized 
world as a measure justly called for by the gravity of the crime, 
and the necessity of its punishment. Anything less than this, 
especially where the offence is one not defined by any law, would, 
in my judgment, not be justified by a calm and considerate pub- 
lic opinion as a cause for removal of a President of the United 
States. And its inevitable tendency would be to shake the faith 
of the friends of constitutional liberty in the permanency of our 
freeinstitutions, and the capacity ofman for self-government. . . . 



IMPEACHMENT OF PRESIDENT 557 

187. Opinion of Senator Grimes.^ 

The first question presented is, is Mr. Stanton's case within 
the provisions of the tenure-of-office act of March 2, 1867? 

Certainly it is not within the body of the first section. . . . 

The plain intent of the proviso to the first section is to pre- 
scribe a tenure for the ofiice of Secretary different from the 
tenure fixed for other civil officers. This is known to have been 
done on account of the marked difference between the heads of 
departments and all other officers, which made it desirable and 
necessary for the public service that the heads of departments 
should go out of office with the President by whom they were 
appointed. It would, indeed, be a strange result of the law if 
those Secretaries appointed by Mr. Lincoln should hold by 
the tenure fixed by the act for ordinary civil officers, while all 
the other Secretaries should hold by a different tenure; that 
those appointed by the present and all future Presidents 
should hold only during the term of the President by whom 
they may have been appointed, while those not appointed by 
him, should hold indefinitely; and this under a law which 
undertakes to define the tenure of all the Secretaries who are 
to hold their offices under the law. I cannot come to that con- 
clusion. My opinion is, that if Mr. Stanton's tenure of office 
is prescribed by this law at all, it is prescribed to him as Sec- 
retary of War, under and by force of the proviso to the first 
section ; and if his case is not included in that proviso it is not 
included in the law at all. 

It is clear to my mind that the proviso does not include, and 
was not intended to include, Mr. Stanton's case. It is not 
possible to apply to his case the language of the proviso unless 
we suppose it to have been intended to legislate him out of 
office; a conclusion, I consider, wholly inadmissible. He was 
appointed by President Lincoln during his first term of office. 
He cannot hereafter go out of office at the end of the term of 
the President by whom he was appointed. That term was 
ended before the law was passed. The proviso, therefore, 
^ Trial of Andrew Johnson, in, 331-38 passim. 



558 RECONSTRUCTION OF THE UNION 

cannot have been intended to make a rule for his case; and it is 
shown that it was not intended. This was plainly declared in 
debate by the conference committee, both in the Senate and in 
the House of Representatives, when the proviso was introduced 
and its effect explained. The meaning and effect of the proviso 
were then explained and understood to be that the only tenure 
of the Secretaries provided for by this law was a tenure to end 
with the term of service of the President by whom they were 
appointed, and as this new tenure could not include Mr. Stan- 
ton's case, it was here explicitly declared that it did not include 
it. . . . 

I come now to the question of intent. Admitting that the 
President had no power under the law to issue the order to 
remove Mr. Stanton and appoint General Thomas Secretary 
for the Department of War ad interim, did he issue those orders 
with a manifest intent to violate the laws and "the Constitu- 
tion of the United States," as charged in the articles, or did he 
issue them, as he says he did, with a view to have the constitu- 
tionality of the tenure-of-ofhce act judicially decided? 

It is apparent to my mind that the President thoroughly 
believed the tenure-of-office act to be unconstitutional and 
void. He was so advised by every member of his cabinet when 
the bill was presented to him for his approval in February, 
1867. The managers on the part of the House of Representa- 
tives have put before us and made legal evidence in this case 
the message of the President to the Senate, dated December 
12, 1867. In that message the President declared — 

That tenure-of-office law did not pass without notice. Like other 
acts it was sent to the President for approval. As is my custom, I 
submitted its consideration to my cabinet for their advice upon 
the question, whether I should approve it or not. It was a grave 
question of constitutional law, in which I would of course rely most 
upon the opinion of the Attorney General and of Mr. Stanton, who 
had once been Attorney General. Every member of my cabinet 
advised me that the proposed law was unconstitutional. All spoke 
without doubt or reservation, but Mr. Stanton's condemnation of 
the law was the most elaborate and emphatic. He referred to the 



IMPEACHMENT OF PRESIDENT 559 

constitutional provisions, the debates in Congress — especially to 
the speech of Mr. Buchanan when a senator — to the decisions of 
the Supreme Court, and to the usage from the beginning of the 
government through every successive administration, all concurring 
to establish the right of removal as vested by the Constitution in 
the President. To all these he added the weight of his own deliber- 
ate judgment, and advised me that it was my duty to defend the 
power of the President from usurpation and to veto the law. . . . 

Here, then, we have the President advised by all of the 
members of his cabinet, including the Attorney General, whose 
duty it is made by law to give legal advice to him, including 
the Secretary for the Department of War, also an eminent 
lawyer and an Attorney General of the United States under a 
former administration, that the act of March 2, 1867, was 
unconstitutional and void, that the three mem.bers of the 
cabinet holding over from Mr. Lincoln's administration were 
not included within its provisions, and that it was desirable 
that upon some proper case a judicial determination on the 
constitutionality of the law should be obtained. 

Now, when it is remembered that, according to Chief Justice 
Marshall, the act of 1789, creating the Department of War, 
was intentionally framed "so as to clearly imply the power of 
removal to be solely in the President," and that "as the bill 
passed into a law, it has ever been considered as a full expression 
of the sense of the legislature on this important part of the 
American Constitution;" when it is remembered that this 
construction has been acquiesced in and acted on by every 
President from Washington to Johnson, by the Supreme Court, 
by every Congress of the United States from the first that ever 
assembled under the Constitution down to the 39th; and when 
it is remembered that all of the President's cabinet and the 
most eminent counsellors within his reach advised him that 
the preceding Congresses, the past Presidents and statesmen, 
and Story and Kent and Thompson and Marshall were right 
in their construction of the Constitution, and the 39th Congress 
wrong, is it strange that he should doubt or dispute the consti- 
tutionality of the tenure-of-office act? 



56o RECONSTRUCTION OF THE UNION 

But all this is aside from the question whether Mr. Stanton's 
case is included in the provisions of that act. If it was not, as I 
think it clearly was not, then the question of intent is not in 
issue, for he did no unlawful act. If it was included, then I ask 
whether, in view of those facts, the President's guilty intent 
to do an unlawful act "shines with such a clear and certain 
light" as to justify, to require us to pronounce him guilty of 
a high constitutional crime or misdemeanor? . . . 

It is not denied, I think, that the constitutional validity of 
this law could not be tested before the courts unless a case was 
made and presented to them. No such case could be made 
unless the President made a removal. That act of his would 
necessarily be the basis on which the case would rest. He is 
sworn to "preserve, protect, and defend the Constitution of 
the United States." He must defend it against all encroach- 
ments from whatever quarter. A question arose between the 
legislative and executive departments as to their relative 
powers in the matter of removals and appointments to office. 
That question was. Does the Constitution confer on the 
President the power which the tenure-of-office act seeks to 
take away? It was a question manifestly of construction and 
interpretation. The Constitution has provided a common 
arbiter in such cases of controversy — the Supreme Court of 
the United States. Before that tribunal can take jurisdiction 
a removal must be made. The President attempted to give the 
court jurisdiction in that way. For doing so he is impeached, 
and for the reason, as the managers say, that — 

He has no authority under the Constitution, or by any law, to 
enter into any schemes or plans for the purpose of testing the validity 
of the laws of the country, either judicially or otherwise. 

If this be true, then if the two houses of Congress should 
pass by a two-thirds vote over the President's veto an act 
depriving the President of the right to exercise the pardoning 
power, and he should exercise that power nevertheless, or if 
he should exercise it only in a single case for the purpose of 
testing the constitutionality of the law, he would be guilty of 



IMPEACHMENT OF PRESIDENT 561 

a high crime and misdemeanor and impeachable accordingly. 
The managers' theory establishes at once the complete su- 
premacy of Congress over the other branches of government. 
I can give my assent to no such doctrine. 

This was a punitive statute. It was directed against the 
President alone. It interfered with the prerogatives of his 
department as recognized from the foundation of the govern- 
ment. It wrested from him powers which, according to the 
legislative and Judicial construction of 80 years, had been 
bestowed upon him by the Constitution itself. In my opinion 
it was not only proper, but it was his duty to cause the dis- 
puted question to be determined in the manner and by the 
tribunal established for such purposes. This government can 
only be preserved and the liberty of the people maintained by 
preserving intact the co-ordinate branches of it — legislative, 
executive, judicial — alike. I am no convert to any doctrine 
of the omnipotence of Congress. . . . 



CHAPTER LXI 

JUDICIAL INTERPRETATION OF THE FOURTEENTH 
AMENDMENT 

In these notable cases, the Supreme Court was called upon to give an 
authoritative interpretation of the war amendments. Of the nationalizing 
tendency of the war, the Court was well aware; but it confessed to a great 
reluctance to obliterate the main features of the federal system. Believing 
that the Court had "always held with a steady and even hand the bal- 
ance between State and Federal power," five of the nine judges agreed in 
giving a restrictive interpretation to the Fourteenth Amendment. The 
pertinent facts in the cases are stated in the opinion of the Court. 

1 88. Slaughter-House Cases. ^ 

Mr. Justice Miller delivered the opinion of the Court: — 

These cases are brought here by writs of error to the Supreme 
Court of the State of Louisiana. They arise out of the efforts of 
the butchers of New Orleans to resist the Crescent City Live- 
stock Landing and Slaughter-House Company in the exercise 
of certain powers conferred by the charter which created it, 
and which was granted by the legislature of that State. . . . 

The records show that the plaintiffs in error relied upon, and 
asserted throughout the entire course of the litigation in the 
State courts, that the grant of privileges in the charter of 
defendant, which they were contesting, was a violation of the 
most important provisions of the thirteenth and fourteenth 
articles of amendment of the Constitution of the United 
States. The jurisdiction and the duty of this court to review 
the judgment of the State court on those questions is clear and 
imperative. 

The statute thus assailed as unconstitutional was passed 
March 8, 1869, and is entitled, "An act to protect the health 
of the city of New Orleans, to locate the stock-landings and 
slaughter-houses, and to incorporate the Crescent City Live- 
stock Landing and Slaughter-House Company." 

^ Supreme Court of the United States, 1873. 16 Wallace, 36. 



INTERPRETATION OF XIV AMENDMENT 563 

The first section forbids the landing or slaughtering of 
animals whose flesh is intended for food, within the city of New 
Orleans and other parishes and boundaries named and defined, 
or the keeping or establishing any slaughter-houses or abattoirs 
within those limits, except by the corporation thereby created, 
which is also limited to certain places afterwards mentioned. 
Suitable penalties are enacted for violations of this prohibition. 

The second section designates the corporators, gives the 
name to the corporation, and confers on it the usual corporate 
powers. 

The third and fourth sections authorize the company to 
establish and erect within certain territorial Hmits, therein 
defined, one or more stock-yards, stock-landings, and slaughter- 
houses, and impose upon it the duty of erecting, on or before 
the first day of June, 1869, one grand slaughter-house of suffi- 
cient capacity for slaughtering five hundred animals per day. 

It declares that the company, after it shall have prepared 
all the necessary buildings, yards, and other conveniences for 
that purpose, shall have the sole and exclusive privilege of 
conducting and carrying on the live-stock landing and slaugh- 
ter-house business within the limits and privilege granted by 
the act, and that all such animals shall be landed at the stock- 
landings and slaughtered at the slaughter-houses of the com- 
pany, and nowhere else. Penalties are enacted for infractions 
of this provision, and prices fixed for the maximum charges of 
the company for each steamboat and for each animal landed. 

Section five orders the closing up of all other stock-landings 
and slaughter-houses after the first day of June, in the parishes 
of Orleans, Jefferson, and St. Bernard, and makes it the duty 
of the company to permit any person to slaughter animals in 
their slaughter-houses under a heavy penalty for each refusal. 
Another section fixes a limit to the charges to be made by the 
company for each animal so slaughtered in their building, and 
another provides for an inspection of all animals intended to 
be so slaughtered, by an officer appointed by the governor of 
the State for that purpose. . . . 

The power here exercised by the legislature of Louisiana is, 



S64 RECONSTRUCTION OF THE UNION 

in its essential nature, one which has been, up to the present 
period in the constitutional history of this country, always 
conceded to belong to the States, however it may now be ques- 
tioned in some of its details. 

/'Unwholesome trades, slaughter-houses, operations offens- 
ive to the senses, the deposit of powder, the application of 
steam-power to propel cars, the building with combustible 
materials, and the burial of the dead, may all," says Chancellor 
Kent, "be interdicted by law, in the midst of dense masses of 
population, on the general and rational principle, that every 
person ought so to use his property as not to injure his neigh- 
bors; and that private interests must be made subservient to 
the general interests of the community." This is called the 
poHce power; and it is declared by Chief Justice Shaw, that it 
is much easier to perceive and realize the existence and sources 
of it than to mark its boundaries, or prescribe limits to its 
exercise. 

This power is, and must be from its very nature, incapable of 
any very exact definition or limitation. Upon it depends the 
security of social order, the life and health of the citizen, the 
comfort of an existence in a thickly populated community, the 
enjoyment of private and social life, and the beneficial use of 
property. . . . 

The regulation of the place and manner of conducting the 
slaughtering of animals, and the business of butchering within 
a city, and the inspection of the animals to be killed for meat, 
and of the meat afterwards, are among the most necessary and 
frequent exercises of this power. It is not, therefore, needed 
that we should seek for a comprehensive definition, but rather 
look for the proper source of its exercise. . . . 

It cannot be denied that the statute under consideration is 
aptly framed to remove from the more densely populated part 
of the city the noxious slaughter-houses, and large and offensive 
collections of animals necessarily incident to the slaughtering 
business of a large city, and to locate them where the conven- 
ience, health, and comfort of the people require they shall be 
located. And it must be conceded that the means adopted by 



INTERPRETATION OF XIV AMENDMENT 565 

the act for tMs purpose are appropriate, are stringent, and 
effectual. . . . 

Unless, therefore, it can be maintained that the exclusive 
privilege granted by this charter to the corporation is beyond 
the power of the legislature of Louisiana, there can be no just 
exception to the validity of the statute. And in this respect we 
are not able to see that these privileges are especially odious 
or objectionable. The duty imposed as a consideration for the 
privilege is weU defined, and its enforcement well guarded. 
The prices or charges to be made by the company are limited 
by the statute, and we are not advised that they are on the 
whole exorbitant or unjust. . . . 

It may, therefore, be considered as established, that the 
authority of the legislature of Louisiana to pass the present 
statute is ample, unless some restraint in the exercise of that 
power be found in the constitution of that State or in the amend- 
ments to the Constitution of the United States, adopted since 
the date of the decisions we have already cited. 

If any such restraint is supposed to exist in the constitution 
of the State, the Supreme Court of Louisiana having neces- 
sarily passed on that question, it would not be open to review 
in this court. 

The plaintiffs in error accepting this issue, allege that the 
statute is a violation of the Constitution of the United States 
in these several particulars : — 

That it creates an involuntary servitude forbidden by the 
thirteenth article of amendment; 

That it abridges the privileges and immunities of citizens 
of the United States; 

That it denies to the plaintiffs the equal protection of the 
laws; and, 

That it deprives them of their property without due process 
of law; contrary to the provisions of the first section of the 
fourteenth article of amendment. 

This court is thus called upon for the first time to give con- 
struction to these articles. . . . 



S66 RECONSTRUCTION OF THE UNION 

Twelve articles of amendment were added to the Federal 
Constitution soon after the original organization of the govern- 
ment under it in 1789. Of these all but the last were adopted 
so soon afterwards as to justify the statement that they were 
practically contemporaneous with the adoption of the original ; 
and the twelfth, adopted in eighteen hundred and three, was 
so nearly so as to have become, Uke all the others, historical 
and of another age. But within the last eight years three 
other articles of amendment of vast importance have been 
added by the voice of the people to that now venerable instru- 
ment. . . . 

We repeat, then, in the light of this recapitulation of events, 
almost too recent to be called history, but which are familiar 
to us all ; and on the most casual examination of the language 
of these amendments, no one can fail to be impressed with the 
one pervading purpose found in them all, lying at the founda- 
tion of each, and without which none of them would have been 
even suggested ; we mean the freedom of the slave race, the 
security and firm estabhshment of that freedom, and the pro- 
tection of the newly-made freeman and citizen from the op- 
pressions of those who had formerly exercised unlimited 
dominion over him. . . . 

The first section of the fourteenth article, to which our 
attention is more specially invited, opens with a definition of 
citizenship — not only citizenship of the United States, but 
citizenship of the States. No such definition was previously 
found in the Constitution, nor had any attempt been made to 
define it by act of Congress. It had been the occasion of much 
discussion in the courts, by the executive departments, and in 
the public journals. It had been said by eminent judges that 
no man was a citizen of the United States except as he was a 
citizen of one of the States composing the Union. Those, 
therefore, who had been born and resided always in the District 
of Columbia or in the Territories, though within the United 
States, were not citizens. Whether this proposition was sound 
or not had never been judicially decided. But it had been held 
by this court, in the celebrated Dred Scott case, only a few 



INTERPRETATION OF XIV AMENDMENT 567 

years before the outbreak of the civil war, that a man of African 
descent, whether a slave or not, was not and could not be a 
citizen of a State or of the United States. . . . 

To remove this difficulty primarily, and to establish a clear 
and comprehensive definition of citizenship which should 
declare what should constitute citizenship of the United States, 
and also citizenship of a State, the first clause of the first section 
was framed. . . . 

The first observation we have to make on this clause is, that 
it puts at rest both the questions which we stated to have been 
the subject of differences of opinion. It declares that persons 
may be citizens of the United States without regard to their 
citizenship of a particular State, and it overturns the Dred 
Scott decision by making all persons born within the United 
States and subject to its jurisdiction citizens of the United 
States. That its main purpose was to estabHsh the citizenship 
of the negro can admit of no doubt. The phrase, "subject to 
its jurisdiction" was intended to exclude from its operation 
children of ministers, consuls, and citizens or subjects of foreign 
States born within the United States. 

The next observation is more important in view of the argu- 
ments of counsel in the present case. It is, that the distinction 
between citizenship of the United States and citizenship of a 
State is clearly recognized and established. Not only may a 
man be a citizen of the United States without being a citizen 
of a State, but an important element is necessary to convert 
the former into the latter. He must reside within the State to 
make him a citizen of it, but it is only necessary that he should 
be born or naturalized in the United States to be a citizen of 
the Union. . . . 

We think this distinction and its explicit recognition in this 
amendment of great weight in this argument, because the next 
paragraph of this same section, which is the one mainly rehed 
on by the plaintiffs in error, speaks only of privileges and 
immunities of citizens of the United States, and does not speak 
of those of citizens of the several States. The argument, how- 
ever, in favor of the plaintiffs rests wholly on the assumption 



568 RECONSTRUCTION OF THE UNION 

that the citizenship is the same, and the privileges and immun- 
ities guaranteed by the clause are the same. 

The language is, "No State shall make or enforce any law 
which shall abridge the privileges or immunities of citizens of 
the United States." . . . 

If, then, there is a difference between the privileges and 
immunities belonging to a citizen of the United States as such, 
and those belonging to the citizen of the State as such, the lat- 
ter must rest for their security and protection where they have 
heretofore rested; for they are not embraced by this paragraph 
of the amendment. 

The first occurrence of the words "privileges and immuni- 
ties" in our constitutional history, is to be found in the fourth 
of the articles of the old Confederation. 

It declares "that the better to secure and perpetuate mutual 
friendship and intercourse among the people of the different 
States in this Union, the free inhabitants of each of these 
States, paupers, vagabonds, and fugitives from justice excepted, 
shall be entitled to all the privileges and immunities of free 
citizens in the several States; and the people of each State shall 
have free ingress and regress to and from any other State, and 
shall enjoy therein all the privileges of trade and commerce, 
subject to the same duties, impositions, and restrictions as the 
inhabitants thereof respectively." 

In the Constitution of the United States, which superseded 
the Articles of Confederation, the corresponding provision is 
found in section two of the fourth article, in the following 
words: "The citizens of each State shall be entitled to all the 
privileges and immunities of citizens of the several States." 

There can be but Httle question that the purpose of both 
these provisions is the same, and that the privileges and im- 
munities intended are the same in each. In the article of the 
Confederation we have some of these specifically mentioned, 
and enough perhaps to give some general idea of the class of 
civil rights meant by the phrase. . . . 

The constitutional provision there alluded to did not create 
those rights, which it called privileges and immunities of citi- 



INTERPRETATION OF XIV AMENDMENT 569 

zens of the States. It threw around them in that clause no 
security for the citizen of the State in which they were claimed 
or exercised. Nor did it profess to control the power of the 
State Governments over the rights of its own citizens. 

Its sole purpose was to declare to the several States, that 
whatever those rights, as you grant or establish them to your 
own citizens, or as you limit or quaHfy, or impose restrictions 
on their exercise, the same, neither more nor less, shall be the 
measure of the rights of citizens of other States within your 
jurisdiction. 

It would be the vainest show of learning to attempt to prove 
by citation of authority, that up to the adoption of the recent 
amendments, no claim oi pretense was set up that those rights 
depended on the Federal Government for their existence or 
protection, beyond the very few express limitations which the 
Federal Constitution imposed upon the States — such, for 
instance, as the prohibition against ex post facto laws, bills of 
attainder, and laws impairing the obligation of contracts. But 
with the exception of these and a few other restrictions, the 
entire domain of the privileges and immunities of citizens of 
the States, as above defined, lay within the constitutional and 
legislative power of the States, and without that of the Federal 
Government. Was it the purpose of the fourteenth amend- 
ment, by the simple declaration that no State should make or 
enforce any law which shall abridge the privileges and immuni- 
ties of citizens of the United States, to transfer the security 
and protection of all the civil rights which we have mentioned, 
from the States to the Federal Government? And where it is 
declared that Congress shall have the power to enforce that 
article,' was it intended to bring within the power of Congress 
the entire domain of civil rights heretofore belonging exclusively 
to the States? . . . 

We are convinced that no such results were intended by the 
Congress which proposed these amendments, nor by the legis- 
latures of the States which ratified them. 

Having shown that the privileges and immunities relied on 
in the argument are those which belong to citizems of the States 



S70 RECONSTRUCTION OF THE UNION 

as such, and that they are left to the State Governments for 
security and protection, and not by this article placed under 
the special care of the Federal Government, we may hold our- 
selves excused from defining the privileges and immunities of 
citizens of the United States which no State can abridge, until 
some case involving those privileges may make it necessary 
to do so. . . . 

The argument has not been much pressed in these cases that 
the defendant's charter deprives the plaintiffs of their property 
without due process of law, or that it denies to them the equal 
protection of the law. The first of these paragraphs has been 
in the Constitution since the adoption of the fifth amendment, 
as a restraint upon the Federal power. It is also to be found in 
some form of expression in the constitutions of nearly all the 
States, as a restraint upon the power of the States. This law, 
then, has practically been the same as it now is during the 
existence of the government, except so far as the present amend- 
ment may place the restraining power over the States in this 
matter in the hands of the Federal Government. 

We are not without judicial interpretation, therefore, both 
State and National, of the meaning of this clause. And it is 
sufficient to say that under no construction of that provision 
that we have ever seen, or any that we deem admissible, can 
the restraint imposed by the State of Louisiana upon the exer- 
cise of their trade by the butchers of New Orleans be held to be 
a deprivation of property within the meaning of that provision. 

"Nor shall any State deny to any person within its jurisdic- 
tion the equal protection of the laws." 

In the light of the history of these amendments, and the per- 
vading purpose of them, which we have already discussed, it is 
not difficult to give a meaning to this clause. The existence of 
laws in the States where the newly emancipated negroes resided, 
which discriminated with gross injustice and hardship against 
them as a class, was the evil to be remedied by this clause, and 
by it such laws are forbidden. 

If, however, the States did not conform their laws to its 
requirements, then by the fifth section of the article of amend- 



INTERPRETATION OF XIV AMENDMENT 571 

ment Congress was authorized to enforce it by suitable legis- 
lation. We doubt very much whether any action of a State 
not directed by way of discrimination against the negroes as a 
class, or on account of their race, will ever be held to come 
within the purview of this provision. It is so clearly a provision 
for that race and that emergency, that a strong case would be 
necessary for its application to any other. But as it is a State 
that is to be dealt with, and not alone the validity of its laws, 
we may safely leave that matter until Congress shall have 
exercised its power, or some case of State oppression, by denial 
of equal justice in its courts, shall have claimed a decision at 
our hands. We find no such case in the one before us, and do 
not deem it necessary to go over the argument again, as it may 
have relation to this particular clause of the amendment. . . . 
The judgments oj the Supreme Court of Louisiana in these cases 
are affirmed. 



CHAPTER LXII 

THE FIFTEENTH AMENDMENT 

"The groups of men favoring a suffrage amendment of some kind were, 
therefore, the politicians, who aimed at congressional control over 
Southern elections, the nationalists, who desired a strong central govern- 
ment, and the universal suffragists, or humanitarians, as they may be 
called, who were laboring to base the enjoyment of political rights upon 
no distinction less comprehensive than humanity itself. Over against all 
three of these, and opposed to a suffrage amendment of any kind, were the 
local autonomists, proud of local tradition and jealous of national inter- 
ference in local affairs."^ When finally formulated, therefore, the amend- 
ment was a resultant of these various forces. Two extracts have been 
made from the debates in Congress to indicate the main argument of the 
nationalists and the counter-argument of the local autonomists. 

189. Representative Shellabarger on the Proposed Fifteenth 
Amendment? 

Now, Mr. Speaker, I will not proceed further to discuss this 
proposed substitute submitted by myself, but will beg such 
attention to it as members may be inclined to give it before 
we come to the vote. I did want to call attention to the 
reasons why we should now submit some amendment securing 
to all the citizens of the Republic a just participation in the 
election of its rulers. I regret that my time will not at all permit 
me to do this in any adequate way. One of these reasons is to 
be found in the fact that the proposition in itself is so eminently 
right that it cannot fail to commend itself to the approval, it 
seems to me, of all right-minded men. Right, I mean — in 
regard to its relations to the Constitution, The framers of the 
Constitution thought that they had so made that instrument 
that they deemed the provisions in regard to who should elect 
the Federal rulers were substantially unalterable by the 
States. They also deemed this regulation of the franchise, by 

^ Mathews, Legislative and Judicial History of the Fifteenth Amendment, 
22. 
2 Congressional Globe, 40 Cong., 3 Sess., App., 98. January 29, 1869. 



THE FIFTEENTH AMENDMENT 573 

which the rulers and the laws of the Republic were to be made, 
one absolutely fundamental and going into the very essence 
of the Government, and one which could not be left to the 
States. This is not only one of those self-evident things about 
which there can be no debate, but it is so expressed, over and 
over, by those who made the Constitution. Mr. Hamilton 
says, (see Federalist, 403 :) 

"The definition of the right of suffrage is very justly regarded 
as a fundamental article of republican government. To have 
submitted this to the legislative discretion of the States would 
have been improper, because it is fundamental, and for the 
additional reason that it would have rendered too dependent 
on the State governments that branch of the Federal Govern- 
ment which ought to be dependent on the people alone." 

He also says, speaking of the clause making electors the 
same as for the most numerous branch of the State Legisla- 
tures, that — 

"It will be safe for the United States, because being fixed by 
the State constitutions it is not alterable by the State govern- 
ments." 

But in speaking of the declaration by Mr. Hamilton that 
the Constitution's definition of the qualifications of Federal 
electors was "not alterable by the State governments," Mr. 
Story says (i Story on Constitution, section 586) "the provis- 
ion has not in fact, and may not have, all the security against 
alteration so confidently affirmed." Thus it is seen, first, that 
the makers of the Constitution did regard this power of defin- 
ing the quahfications of Federal electors fundamental, and one 
which the Convention could not properly leave to the States; 
second, that they thought that as they had arranged it in the 
Constitution it was substantially "unalterable by the States;" 
and third, that their expectations as to this last have not been 
historically realized. This vital power of Government has 
turned out, in practice, to be one not only "alterable by the 
States," but one which the States have so used as that in many 
of them the masses of the people who are loyal to their country 
and who have not gone into a stupendous rebellion for the 



574 RECONSTRUCTION OF THE UNION 

overthrow of the Government, could and would to-day be 
wholly deprived of all powers of government by the assump- 
tion of the elective franchise, by those alone who did engage 
in such rebellion. So startling a fact must impel us, by its 
irresistible forces, to go at once to the remedying of so grave a 
defect in the Constitution as that one is which leaves to the 
States, only and supremely, the matter of making both the 
rulers, and through these, the laws of the Republic. 

Now, I appeal to the gentlemen upon the other side of the 
House, and on all sides, if I am not arguing the merest truism 
when I say that that Government is not a Government at all 
that has not in itself power to control the question as to who 
shall make the rulers of that Government, and which, for that 
very reason, has not in itself the power of either making or 
executing its own laws. It is fundamental, essential, as Mr. 
Hamilton said it was. Therefore I appeal to the other side of 
the House when I say that the thing is, in the philosophy of 
government and in logic, right. And it is therefore an amend- 
ment, in so far as it makes a Federal definition of Federal elector- 
ship, required by the plainest and most elementary principles 
of every free Government. 

190. Senator Doolittle on the Proposed Fifteenth Amendment} 

To define the precise line of demarcation between the powers 
granted and the powers reserved is a most difficult task — to 
mark in language the precise point where the powers of the 
State end, and the power of the Federal Government begins. 
But there are some powers so clearly defined that no man in 
his senses can be mistaken. Upon this great question, whether 
the power of the States over the question of suffrage is reserved 
to them or conferred upon the Federal Government by the 
Constitution, no sane man can doubt. And, sir, the wisdom of 
still reserving it to the States is so undoubted that even Mr. 
Hamilton, the representative of centralization, the incarnation 
of Federalism, was compelled to say that to put into the Con- 
stitution of the United States such a power in this Government 

^ Congressional Globe, 40 Cong., 3 Sess., App., 151. February 6, 1869. 



THE FIFTEENTH AMENDMENT 575 

to control the question of suffrage and elections in the States 
would be an engine calculated to destroy the governments of 
the States. 

Mr. President, I do not make this statement at random. 1 
have before me the language of Mr. Hamilton, in the fifty- 
ninth number of the Federalist, in which he puts this very case : 

"Suppose an article had been introduced into the Constitu- 
tion empowering the United States to regulate elections for 
the States, would any man have hesitated to condemn it both 
as an unwarrantable transposition of power and as a premedi- 
tated engine for the destruction of the State governments?" 

And yet your proposed amendment does all that. Mr, 
President, it says that suffrage shall not be restricted on 
account of race, color, or previous condition, and that Congress 
shaU have power to enforce it by appropriate legislation. Sir, 
the power to enforce it of necessity implies power over the 
election of the States. In order to give to the colored man of 
the States the right to vote at the elections in the States, to 
secure to his vote a fair count, and to make sure that if his vote 
be counted and determine the result that the person elected 
shall have the ofl&ce, will draw to this Government the power to 
control the elections themselves. It is impossible to separate 
the two. But one authority can decide the result of an election. 
It must be the State authority or the Federal authority. As it 
reaches all elections, if the Federal authority is supreme, the 
State authority must succumb in all elections to Federal 
control. . . . 

Mr. President, I maintain in the first place that the right to 
fix the qualifications of voters is essential to a republican form 
of government, and that any State which has not the right 
to fix and determine for itself who shall vote and who shall not 
vote ceases to be republican, for it loses the power to govern 
itself. If Congress can determine who shall vote in Indiana, 
Indiana no longer governs herself. If Illinois can determine 
who shall vote in Indiana, it is not the people of Indiana who 
govern themselves, but it is the people of IlHnois who govern 
Indiana. 



576 RECONSTRUCTION OF THE UNION 

It cannot be too often repeated that it is absolutely essen- 
tial to republican government that the State for itself shall 
have the power to fix the qualification of its voters. That 
clause in the Constitution to which the honorable Senator from 
Massachusetts so often appeals, "that the United States shall 
guaranty to each State a republican form of government," is 
in direct conflict with the proposed amendment, because 
republican government is self-government, and there can be 
no self-government in a State if any outside State or any other 
power above the control of the State can take away from the 
States the power to determine for themselves who shall exer- 
cise the right of suffrage in the States; for those who vote 
govern the State, and if an outside power determines who shall 
vote in a State that power governs the State. This is a propo- 
sition not to amend, but to revolutionize. It is not in the way 
of improving and upholding, but in the way of upturning the 
foundations of the system, and of destroying the very spirit 
which gives it life, the very ideas of which it was born, upon 
which it has lived, and without which our republican institu- 
tions in a country so vast and so diversified as ours cannot 
survive. 

191. The Fifteenth Amendment} 

ARTICLE XV 

Section i. The right of citizens of the United States to 
vote shall not be denied or abridged by the United States or by 
any State on account of race, color, or previous condition of 
servitude. 

Section 2. The Congress shall have power to enforce this 
article by appropriate legislation. 

192. Judicial Interpretation of the Fifteenth Amendment. 

... The Fifteenth Amendment does not confer the right 
of suffrage upon anyone. It prevents the States or the United 
States, however, from giving preference, in this particular, to 

^ This amendment went into effect March 30, 1870. Revised Statutes of 
the United States (1878), 32. 



THE FIFTEENTH AMENDMENT 577 

one citizen of the United States over another on account of 
race, etc. Before its adoption, this could be done. . . . Now 
■it cannot. If citizens of one race having certain quahfications 
are permitted to vote, those of another having the same quali- 
fications must be. ... It follows that the Amendment has 
invested the citizen of the United States with a new constitu- 
tional right which is within the protecting power of Congress. 
That right is exemption from discrimination in the exercise of 
the elective franchise on account of race, color, or previous 
condition of servitude. . . . 

The power of Congress to legislate at all upon the subject of 
voting at State elections rests upon this Amendment. It can- 
not be contended that the Amendment confers authority to 
impose penalties for every wrongful refusal to receive the vote 
of a quaHfied elector at State elections. It is only when the 
wrongful refusal at such an election is on account of race, 
etc., that Congress can interfere and provide for its punish- 
ment.^ . . . 

. . . The right of suffrage is not a necessary attribute of 
national citizenship ; but exemption from discrimination in the 
exercise of that right on account of race, etc., is. The right to 
vote in the States comes from the States; but the right of 
exemption from the prohibited discrimination comes from the 
United States. The first has not been granted or secured 
by the Constitution of the United States; but the last has 
been.^ ... v 

^ United States v. Reese. Supreme Court of the United States, 1876. 
92 U. S. 214. 

2 United States v. Cruikshank. Supreme Court of the United States, 
1876. 92 U. S. 542. 



INDEX 



American Insurance Company v. Can- 
ter, 241-243. 

Ames, Fisher, on powers of secretary 
of treasury, 180-182; on the com- 
mittees of Congress, 213. 

Amnesty, Lincoln's proclamation of, 

509-511- 
Annapolis Convention, origin of, 93- 

96; report of, 96-98. 
Articles of Confederation, text of, 74- 

83; defects of, 84-92. 
Assemblies, colonial, competence of, 

26-30; financial encroachments of, 

31-33- 

Association, the, 35-40. 

Attorney-General, opinion of, on Fu- 
gitive Slave Law, 423-425; on pow- 
ers of President under militia laws, 
454-455; on suspension of writ of 
habeas corpus, 478-481. 

Baltimore, Lord, grantee and proprie- 
tor of Maryland, 6-9. 

Bates, Attorney-General, opinion on 
the suspension of the writ of habeas 
corpus, 478-481. 

Bayard, Representative, on the elec- 
tion of 1801, 214-216. 

Bernard, Governor, of New Jersey, 
commission of, 18-22; instructions 
to, 22-25. 

Bingham, Representative, on the pro- 
posed fourteenth amendment, 520- 

523- 

Black, Attorney-General, on the pow- 
ers of the President under militia 
acts, 454-455- 

Blount resolutions, 205. 

Boudinot, Representative, on secre- 
tary of treasury, 182-183. 

Buchanan, James, message of, on se- 
cession, 455-459- 

Cabinet, Jackson's paper read to, 380- 

383. 
Calhoun, John C, South Carolina ex- 



position of, 317-322; his report for a 
committee, 322-323; his Fort Hill 
letter, 323-325. 

Cass, Lewis, letter to Governor Nich- 
olson, 411-414. 

Charter, of Connecticut, 1-4; of Mary- 
land, 6-9. 

Charter governments, defense of, 4-6. 

Checks and balances, 61-62. 

Cherokee Nation v. Georgia, 310-312. 

Chisholm v. Georgia, 140-142. 

Clay, Henry, on the veto power, 375- 
378. 

Clayton compromise. Representative 
Stephenson, 408-411. 

Coercion of a State, 454-459. 

Cohens v. Virginia, 287-290. 

Collamer, Senator, on confiscation, 
482-486. 

Commission of a royal governor, 18- 
22. 

Committee on Territories, report of 
the Senate (1854), 426-429. 

Compromise, in Federal Convention, 
iio-iii; Missouri, 299; of 1850, 

426-435- 

Confederation, Articles of, 74-83; 
defects of, 84-92. 

Confiscation of rebel property, 482- 
490. 

Connecticut, charter of, 1-4; constitu- 
tion of 1776, 63-64; governor of, to 
secretary of war, 264-266; resolu- 
tions of General Assembly of, 266- 
267. 

Conquered-province theory of Thad- 
deus Stevens, 530—531. 

Constitution of Connecticut (1776), 
63-64; of New Jersey (1776), 64- 
68; of Virginia (1776), 68-73. 

Constitution, Federal (1787), text of, 
112-125; transmission of, 126-127; 
ratification by Georgia, 127-128; 
first ten amendments to, 138-140; 
eleventh amendment to, 142; twelfth 
amendment to, 223-224; thirteenth 



58o 



INDEX 



amendment to, 506, fourteenth 
amendment to, 526-527; fifteenth 
amendment to, 576. 
Constitutions, changes in State, 363- 

369- 

Continental Congress, credentials of 
delegates to, 34-35; acts and re- 
solves of, 35-42. 

Contraband of war, 500-502. 

Convention, Annapolis (1786), origin 
of, 93-96; report of, 96-98. 

Convention, Federal (1787), origin of, 
93-98; call of, 98-99; opening ses- 
sion of, 102-104; credentials of 
Maryland delegates to, 103; Ran- 
dolph resolutions, 104-107; Paterson 
resolutions, 107-109; the great com- 
promise, iio-iii. 

Corporate colony as a type, 1-4. 

Crittenden, Attorney-General, opin- 
ion on Fugitive Slave Law, 423-425. 

Curtis, Benjamin R., on the executive 
power, 492-495. 

Davis, Jefferson, on the dissolution of 
the Federal partnership, 462-463. 

Declaration of Independence, 46-47. 

Declaration of Rights, of Massachu- 
setts, 48-54. 

Defense of charter governments, 4-6. 

Democracy, definition of, 55; basis of 
the new, 353-362. 

De Tocqueville, on social and political 
equality, 353-355 ; on the sovereignty 
of the people in America, 355-356. 

Dictator, the President as, 474-481; 
power of Congress to create, 491- 
492. 

Doolittle, Senator, on the proposed 
fifteenth amendment, 574-576. 

Dorr rebellion in Rhode Island, 345- 
348. 

Douglas, Stephen A., report of, on 
the Nebraska territory, 426-429; 
on popular sovereignty, 433-435; 
Freeport doctrine of, 446-447, 45a- 

451- 
Dred Scott v. Sandford, 436-445. 
Dummer, Jeremiah, defense of charter 

governments, 4-6. 

Eleventh Amendment, origin of, 140- 
142; text of, 142. 



Emancipation proclamation, 504-506. 
Everett, Senator, on the legislation of 

1850, 430-433. 
Executive power, Benjamin R. Curtis 

on the, 492-495. 
Ex parte John Merryman, 474-478. 
Ex parte Milligan, 495-499. 
Exposition, South Carolina, 317-322. 

Federalist, on democracies and repub- 
lics, 55-56; on the nature of repre- 
sentation, 56-58; on the separation 
of powers, 59-61; on checks and 
balances, 61-62; on the defects of 
the Confederacy, 84-92; on the fed- 
eral convention, 99-101; on the na- 
ture of the Constitution, 128-134. 

Fessenden, Senator, on the impeach- 
ment of President Johnson, 555-556. 

Fifteenth Amendment, origin of, 572- 
576; text of, 576; interpretation of, 

576-577- 

First Continental Congress, credentials 
of delegates to, 34-35; acts and re- 
solves of, 35-40. 

Forfeited-rights theory, 532-535. 

Forfeiture of slaves, 502-503. 

Fourteenth Amendment, origin of, 
518-526; text of, 526-527; interpre- 
tation of, 562-571. 

Franklin, Benjamin, on the proprie- 
tary governor, 30-31. 

Freeport doctrine, of Stephen A. Doug- 
las, 446-447. 

Fugitive Slave Act of 1850, opinion of 
attorney-general on, 423-425. 

Fugitive slaves, rendition of, 416-425; 
as contraband, 500-502. 

Gallatin, Albert, on reports of the 
treasury, 186-187; on the treaty- 
making power, 198-201. 

Georgia, resolution of the legislature of, 
on Indian lands, 308-309; on the 
case of Tassels, 309-310. 

Gerry, Representative, on powers of 
secretary of treasury, 183-184. 

Gibbons v. Ogden, 291-298. 

Gooch, Governor of Virginia, report of, 
14-17. 

Governor, proprietary, Franklin on, 30- 
31; royal, cpmmission of, 18-22; in- 
structions of, 22-25; negative voice 



INDEX 



581 



of, II, 15, 20, 23, 24; state, as the peo- 
ple's representatives, 365-366; veto 
power of, 363-365; appointment of 
provisional, 512-515. 

Grimes, Senator, on the impeachment 
of President Johnson, 557-561. 

Griswold, Representative, on powers 
of President in acquired territory, 
243-244. 

Habeas corpus, writ of, and Fugitive 
Slave Act, 423-425; suspension of, 
468-469, 474-481. 

Hamilton, Alexander, joint author of 
Federalist, 56-58; on defects of the 
Confederation, 84-92; author of the 
Annapolis address, 96-98; on the 
treasury department, 178, 185; his 
instructions to Governor Lee, 193- 
196. 

House of Representatives, address of, 
154-156; and the first veto, 157-159; 
and heads of departments, 184-187; 
and the treaty-making power, 197- 
205; opening of a session, 206-208; 
rules of, 208-212; committees of, 
209, 210, 213. 

Howard, Senator, on the proposed four- 
teenth amendment. 523-526. 

Impeachment of President Johnson, 
Wilson on, 553-555; Fessenden on, 
555-556; Grimes on, 557-561. 

Instructions to a royal governor, 22- 

25- 

Jackson, Andrew, proclamation of, to 
the people of South Carolina, 329- 
334, 335-337; bank veto of, 370- 
375; paper read to Cabinet by, 380- 
383; his Protest, 384-389. 

Jefferson, Thomas, on the first veto 
message, 157; on communications 
with Congress, 159; on the relation 
of heads of departments to Congress, 
184-186; on the constitutionality of 
a national bank, 225-228; on the 
purchase of Louisiana, 237; on the 
federal judiciary, 252-253. 

Johnson, Andrew, on the restoration 
of the Union, 512-517; and the Re- 
construction Acts, 538-546; im- 
peachment of, 553-561. 



Joint Committee on Reconstruction, 
report of, 518-520, 532-535. 

Judiciary, Federal, power of, to de- 
clare acts void, 246-253, 273-281; 
Jefferson on, 252-253; and Pennsyl- 
vania, 254-262; appellate jurisdic- 
tion of, 282-290; and constitutional 
interpretation, 291-298; political 
power of, 366-367; State, popular 
election of, 366-367. 

Kansas-Nebraska Act, principles of, 
^ 426-435. 
Kent, Chancellor on universal suffrage, 

356-360. 
Kentucky resolutions, of 1798, 228- 

235; of 1799, 235-236. 

Legislatures, colonial, competence of, 
26-30; encroachments of, 31-33; 
organization of, 3, lo-ii, 14-15, 19- 
20, 22-24; State, basis of representa- 
tion in, 64-65, 68-69, 356-362; ex- 
cessive legislation of, 363-366. 

Lincoln, Abraham, debate of, with 
Douglas, 446-453; inaugural address 
of, 464-466; call to arms of, 466; 
his proclamation of blockade, 467; 
his first message, 468-471; his pro- 
clamation of war, 471-472; his in- 
structions as to slaves to army com- 
manders, 500-502; on forfeiture of 
slaves, 502-503; his proclamation of 
emancipation, 504-506; his proclam- 
ation of amnesty, 509-511; his last 
speech, 412. 

Livingston, Representative, on the Jay 
Treaty, 197-198. 

Locke, John, on the dissolution of gov- 
ernments, 43-44. 

Louisiana Treaty, scope of, 237-241. 

Luther v. Borden, 348-352. 

Maclay, William, on the inauguration 
of Washington, 151-154; on the de- 
bates in the Senate, 162-167. 

Madison, James, on the Annapolis 
Convention, 93-96; on the Federal 
Convention, 99-101 ; on the nature of 
the Constitution, 128-134; on amend- 
ing the Constitution, 135-138; on 
the appointing and removing power, 
169-177. 



582 



INDEX 



Marbury v. Madison, 246-252. 

Martin v. Hunter's Lessee, 282-287. 

Martin v. Mott, 271-272. 

Maryland, charter of, 6-9; credentials 
of delegates of, to Federal Conven- 
tion, 103. 

Massachusetts, Declaration of Rights 
of, 48-54; governor of, to the Secre- 
tary of War, 268; opinion of judges 
of, on militia question, 269-271. 

M'Culloch V. Maryland, 273-281. 

McLane, Representative, on the ad- 
mission of Missouri, 302-305. 

Mississippi v. Andrew Johnson, 547- 
550. 

Missouri, admission of, 299-307. 

Montesquieu, on the separation of 
powers, 59-61. 

Negative voice, of colonial governors, 
II, IS, 20, 23, 24. 

New Hampshire, revolution in, 44-46. 

New Jersey, governor of, commission 
and instructions, 18-25; constitu- 
tion of 1776, 64-68. 

New Orleans v. Winter, 245. 

New York, report of Governor Tryon 
on, 10-13. 

North Carolina, appointment of pro- 
visional governor of, 512-515. 

Northwest Territory, ordinance for, 

• 143-150. 

NuUification, in New England, 263- 
272; in Georgia, 308-316; doctrine 
of, 317-325; in South Carolina, 326- 
334- 

Ordinance for the Northwest Terri- 
tory, 143-150; of Nullification, 326- 
329- 
Page, Representative, on powers of 
the secretary of treasury, 178-180. 

Paterson resolutions, 107-109. 

Pennsylvania, governors of, 30-31; 
and the federal judiciary, 254- 
262. 

Personal Liberty Laws, 422-423. 

Pinkney, Senator, on the admission 
of Missouri, 305-307. 

Polk, James K., on the veto power, 
378-379; war message of, 393-397; 
his message to Congress (1847), 399- 



402; his message to Congress (1848), 
404; his message to the House 
(1848), 402-403. 
Popular sovereignty, doctrine of, 426- 
435; and the Dred Scott decision, 

446-453- 

Pownall, Thomas, on the issues be- 
tween crown and colonies, 26-30; 
on colonial legislation, 31-33. 

President, inauguration of first, 151- 
154; speech of, to House, 154-156; 
first veto message of, 157-158; and 
Senate, 160-167; appointing and re- 
moving power of, 168-177; treaty- 
making power of, 162-167, 197- 
205, _ 237-245, 308-316, 399-402; 
election of, 214-224; veto power of, 
370-379; directive power of, 380- 
392; initiative of, in foreign policy, 
393-404; power of, to call out mili- 
tia, 269-272, 344-352, 454-45S, 466, 
467, 468-471, 471-473; power of, to 
suspend habeas corpus, 474-482; 
powers of, as commander-in-chief, 
492-495; power of, to declare martial 
law, 495-499; power of, to emanci- 
pate slaves, 503-504; reconstruction 
policy of, 509-5 1 7 ; and congressional 
reconstruction, 538-546; and the en- 
forcement of the reconstruction acts, 
547-550; the impeachment of, 553- 
S6i. 

Prigg V. Pennyslvania, 416-421. 

Prize Cases, 472-473. 

Property not the true basis of repre- 
sentation, 360-362. 

Proprietor of Maryland, powers of, 
6-9. 

Protest, of President Jackson, 384- 
389; Webster on, 389-392. 

Province, proprietary, as a type, i, 6- 
9; royal, as a type, i, 10-14. 

Provisional governor, appointment of, 
for North Carolina, 512-515. 

Proviso, Wilmot, 405. 

Purse, power of the, in colonial assem- 
blies, 31-33. 

Randolph resolutions, 104-107. 

Reconstruction, report of Joint Com- 
mittee on, 518-520, 532-535. 

Reconstruction Acts, President John- 
son's vetoes of, 538-546. 



INDEX 



583 



Representation, the Federalist on the 

nature of, 56-58. 
Representative assemblies, competence 

of, 26-30; financial encroachments 

of, 31-33- 

Representative government, princi- 
ples of, 55-63. 

Republic, definition of, 56. 

Rhett, Representative, on slavery in 
territories, 406-408. 

Rhode Island, memorial of Democratic 
members of the legislature of, 345- 
348. 

Rodney, Representative, on the pow- 
ers of Congress in territories, 244. 

Secession, Calhoun on, 324-325; Bu- 
chanan on, 455-457; Lincoln on, 
464-465, 469-471; causes of, 459- 
462. 

Second Continental Congress, resolu- 
tions of, 40-42 ; declaration of, 46-47. 

Secretary of Foreign Affairs, debate on 
the establishment of, 168-177. 

Secretary of the Treasury, debate on 
the powers of, 178-184; Gallatin on 
the reports of, 186-187. 

Sedgwick, Representative, on powers 
of the secretary of the treasury, 
180-182. 

Senate, resolution of, on the manner of 
receiving the President, 161-162; 
in executive session, 162-167. 

Separation of powers, doctrine of, 
59-61. 

Sere et al. v. Pitat et aL, 244-245. 

Shellabarger, Representative, on the 
proposed fifteenth amendment, 572- 

574- 

Slaughter-House Cases, 562-571. 

Slavery in the Territories, Rhett and 
Calhoun on, 406-408; Stephens on, 
408-411; Cass on, 411-414; and the 
legislation of 1850, 414-415; and the 
legislation of 1854, 426-435; opinion 
of the Supreme Court on, 436-443; 
Lincoln and Douglas on, 446-453. 

South Carolina Declaration of Causes 
of Secession, 459-462. 

South Carolina Exposition, 317-322. 

South Carohna Ordinance of Nulli- 
fication, 326-329. 

Squatter Sovereignty, 411-414. 



States of the Southern Confederacy, 
status of, as viewed by Sumner, 528- 
530; as viewed by Stevens, 530- 
531; as viewed by the Joint Commit- 
tee on Reconstruction, 532-535; 
as viewed by the Supreme Court, 
535-537- 

State-suicide theory of Charles Sum- 
ner, 528-530. 

Stephens, Alexander H., on the Mexi- 
can War, 397-399; on the law of ac- 
quired territory, 408-411. 

Stevens, Thaddeus, on the power of 
Congress to create a dictator, 491- 
492; conquered-province theory of, 

530-531- 

Suffrage, Chancellor Kent on universal, 
356-360. 

Sumner, Charles, on the rights of war, 
486-488; State-suicide theory of, 
528-530. 

Supreme Court, and acts of Congress 
repugnant to the constitution, 246- 
252; Jefferson on the usurpation of, 
252-253; and State rights, 254-262, 
310-316; and the doctrine of liberal 
construction, 273-281; jurisdiction 
of, over State courts, 282-290; and 
the constructive interpretation of 
the constitution, 291-298; and polit- 
ical questions, 348-352; and con- 
gressional reconstruction, 550-552; 
and the executive functions of the 
President, 547-550; and the suspen- 
sion of constitutional guarantees, 
474-478; 495-499; and the thirteenth 
amendment, 506-508; and the four- 
teenth amendment, 562-571 ; and the 
fifteenth amendment, 576-577. 

Taylor, Representative, on the admis- 
sion of Missouri, 299-302. 

Taylor, Senator, on the proposed twelfth 
amendment, 221-223; on the Louisi- 
ana Treaty, 237-241. 

Ten Amendments, origin of, 135-138; 
text of, 138-140. 

Territorial Acts of 1850, 414-415. 

Territory, ordinance for the North- 
west, 143-150; power of Congress to 
acquire, 237-243; powers of Con- 
gress over acquired, 243-245; legal 
status of slavery in a, 405-415. 



584 



INDEX 



Texas v. White, 550-552. 

Thirteenth Amendment, text of, 506; 

judicial interpretation of, 506-508. 
Thomas, Representative, on confisca- 
tion, 488-490. 
Tracy, Senator, on the proposed twelfth 

amendment, 219-221. 
Treaty-making power, 162-167, i97~ 

205, 237-245, 308-316, 399-402. 
Tryon, report of Governor, on New 

York, 10-13. 
Tucker, Representative, on powers of 

secretary of treasury, 179-180. 
Twelfth Amendment, origin of, 214- 

223; text of, 224. 
Tyler, John, letter of, to Governor of 

Rhode Island, 344-345. 

United States v. Cruikshank, 577. 
United States v. Judge Peters, 254- 

260. 
United States v. Reese, 576-577. 

Vermont, Personal Liberty Act of, 

422-423. 
Veto power, of the President, 157- 

159, 370-379; of the Governor, 363- 

366. 
Virginia, report of Governor Goochon, 

14-17; constitution of 1776, 68-73; 

report of the legislature of, 421-423. 

War, Nature of the (1861-1865), 464- 

473- 
War Power, the. Representative 
Stephens on, 397-399; President 



Polk on, 393-397, 399-404; Attor- 
ney-General Black on, 454-455; 
President Buchanan on, 455-459; 
President Lincoln on, 466-471; Su- 
preme Court on, 472-473, 495-499! 
Senator CoUamer on, 482-486; 
Senator Sumner on, 486-488; Repre- 
sentative Thomas on, 488-490; Re- 
presentative Stevens on, 491-492; 
Benjamin R. Curtis on, 492-495; 
Whiting on, 503-504. 

Washington, George, inauguration of, 
151-154; his reply to address, 156; 
his first veto, 157-158; on consulta- 
tions with the Senate, 160-16 1; his 
proclamations on the Whiskey Rebel- 
lion, 188-193; his message on the 
treaty-making power, 202-204. 

Webster, Daniel, reply to Hayne, 337- 
343; on President Jackson's Protest, 
389-392. 

Whiskey Rebellion, 188-196. 

White, Representative, on the appoint- 
ing and removing power, 168-169. 

White, Senator, on the proposed twelfth 
amendment, 216-219. 

Whiting, Solicitor-General, on the war 
powers of the President, 503-504. 

Wilmot Proviso, 405. 

Wilson, Senator, on the impeachment 
of President Johnson, 553-555. 

Worcester v. Georgia, 312-316. 

Yates, Notes of, on the grand commit- 
tee of the Federal convention, iio- 
III. 



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